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CONSTITUTION 1 



OF 



South Dakota 
1917 



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ANNOTATED BY 

JUSTICE J. H. GATES 



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Published By 2 

SECRETARY OF STATE 





Book_[x^_ 






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CONSTITUTION 

OF THE 

State of South Dakota 
1917 



ANNOTATED CONSTITUTION OF 
SOUTH DAKOTA 



(Constitution adopted by popular vote October 1, 1889. Yeas, 
70,131 ; Nays, 3,267. Took effect Nov. 2, 1889, when South Dakota 
was admitted into the Union.) 

Annotations and reference notes by John Howard Gates, 
Judge Supreme Court. 

The organic law of a territory takes the place of a consti- 
tution. First Nat, Bank v. County of Yankton, 101 U..S. 129, 
25 L. eel. 1046. Hence the territorial decisions upon constiutional 
law are of importance and authoritative where the provisions 
of the organic law and of the constitution are the same. The 
author has therefore inserted herein notes of Dakota decisions 
bearing on constitutional law. He has also inserted notes on 
decisions of the Federal Courts in important cases arising from 
the Districts of North Dakota and South Dakota. 

(Annotations and editorial matter on the constitution 
copyrighted by John Howard Gates, 1917.) 

PREAMBLE 

We, the people of South Dakota, grateful to Almighty God 
for our civil and religious liberties, in order to form a more per- 
fect and independent government, establish justice, insure tran- 
quility, provide for the common defense, promote the general 
welfare and preserve to ourselves and to our posterity the bless- 
ings of liberty, do ordain and establish this Constitution for the 
State of South Dakota. 

One of the means for providing for a public and beneficial purpose 

for the "common defense", promot- within the purview of the purposes 

ing the "general welfare" and pre- for which the constitution was 

serving "the blessing of liberty" is created. State ex rel. Morris v. 

the organization and maintenance of »Handlin,. 162 N. W. 379. 
the militia. Ch. 51 '17 was enacted \ 

ARTICLE I. 

NAME AND BOUNDARY 

§ 1. The name of the state shall be South Dakota. 
§ 2. The boundaries of the State of South Dakota shall be 
as follows: Beginning at the point of intersection of the western 



D. of D. 
IAR 25 191 



Art. 1, § 2. THE CONSTITUTION 



boundary line of the State of Minnesota, with the northern 
boundary line of the State of Iowa and running thence northerly 
along the western boundary line of the state of Minnesota, to its 
intersection with the 7th standard parallel; thence west on the 
line of the 7th standard parallel produced due west to its inter- 
section with the 27th meridian of longitude west from Washing- 
ton; thence south on the 27th meridian of longitude west from 
Washington to its intersection with the northern boundary line 
of the State of Nebraska; Thence easterly along the northern 
boundary line of the State of Nebraska to its intersection with 
the western boundary line of the State of Iowa; thence northerly 
along the western boundary line of the state of Iowa to its inter- 
section with the northern boundary line of the state of Iowa; 
thence east along the northern boundary line of the State of 
Iowa to the place of beginning. 

ARTICLE II. 

DIVISION OF THE POWERS OF GOVERMENT 

The powers of the government of the state are divided into 
three distinct departments, — the legislative, executive and judi- 
cial: and the powers and duties of each are prescribed by this 
constitution. 

Power to amend the constitution not what it should contain, nor can 

belongs exclusively to the legisla- it interpose in any case to restrain 

ture and electors. It is legislation the enactment of an unconstitutional 

of the most important character. law. State ex rel. Cranmer v. Thor- 

The supreme court has power to de- son, 9 S. D. 149, 68 N. W. 202, 33 

termine what such legislation is, L. R. A. 5 8 2. 
what the constitution contains, but 

ARTICLE III. 

LEGISLATIVE DEPARTMENT 

§ 1. The legislative power of the state shall be vested in a 
legislature which shall consist of a senate and house of repre- 
sentatives, except that the people expressly reserve to them- 
selves the right to propose measures, which measures the legis- 
lature shall enact and submit to a vote of the electors of the state, 
and also the right to require that any laws which the legislature 
may have enacted shall be submitted to a vote of the electors of 
the state before going into effect (except such laws as may be 
necessary for the immediate preservation of the public peace, 
health or safety, support of the state government and its existing 
public institutions), Provided, that not more than five per centum 
of the qualified electors of the state shall be required to invoke 
either the initiative or the referendum. 



THE CONSTITUTION 



Art. Ill, § 1. 



This section shall not be construed so as to deprive the legis- 
lature or any member thereof of the right to propose any mea- 
sure. The veto power of the executive .shall not be exercised as 
to measures referred to a vote of the people. This section shall 
apply to municipalities. The enacting clause of all laws approv- 
ed by vote of the electors of the state shall be : "Be it enacted by 
the people of South Dakota." The legislature shall make suit- 
able provisions for carrying into effect the provisions of this 
section. (As amended.) 



This section amended as above 
Nov. 8, 1898, pursuant to ch. 39 '97. 
Amendment proposed by ch. 132 '13 
rejected Nov. 3, 1914. 

The power to make laws regulat- 
ing or prohibiting the sale of intox- 
icating liquors is undoubtedly within 
the police power. County Option 
Law, ch. 70 '87 was not a delegation 
of legislative power. Ter. ex rel, 
McMahon v. O'Connor, 5 Dak. 3 97, 
41 N. W. 746, 3 L. R. A. 355. 

Ch. 17 Sp. Laws '85 exempting 
certain counties from the operation 
of ch. 115 '83 was within the police 
power of the territorial legislature. 
Sprague v. P. E. & M. V. R. Co., 6 
Dak. 86, 50 N. W. 617. 

Ch. 54 '90 relating to mercantile 
or commercial agencies is within the 
legislative power and is not an in- 
terference with interstate commerce. 
State v. Morgan, 2 S. D. 3 2, 48 N. 
W. 314; writ of error dismissed, 159 
U. S. 261, 40 L. ed. 145, 15 Sup. Ct. 
Rep. 1041. 

Police power defined. Under this 
power the state may regulate but 
not prohibit the citizen from carry- 
ing on any trade, occupation or bus- 
iness that is not offensive to the 
community nor injurious to society. 
State v. Scougal, 3 S. D. 55, 51 N. 
W. 858, 15 L. R. A. 477, 44 Am. St. 
Rep. 756. 

To hold that a judgment, valid 
when entered, became voidable upon 
the enactment of ch, 89 '9 5 would 
deprive unreversed judgments of the" 
element of conclusiveness, intrench 
upon the constitutional principle 
which separates the powers and 
functions of the three great depart- 
ments of government and in effect 



amount to a reversal of the judg- 
ment by the legislative power of the 
state. Skinner v Holt, 9 S. D. 427, 
69 N. W. 595, 62 Am. St. Rep. 878. 

Ch. 6 5 '01 contained the usual 
emergency clause and an additional 
clause that the act was necessary for 
the immediate preservation and sup- 
port of the existing public institu- 
tions of the state. It was held that 
the act became effective immediately 
upon its approval and was not sub- 
ject to the referendum because the 
legislative declaration that the act 
was necessary for the immediate 
preservation etc. was conclusive upon 
the court. It was held that with 
the usual emergency clause and 
without such declaration the act 
would not be subject to the refer- 
endum because the provisions of sec- 
tion 2 2 of this article must be read 
as an additional exception to those 
mentioned herein wherein the refer- 
endum cannot be invoked. State ex 
rel. Lavin v. Bacon, 14 S. D. 3 9 4, 8 5 
N. W. 605. 

The contention that ch. 7 2 '97 
was a delegation of legislative power 
to local communities to prohibit or 
authorize the sale of intoxicating 
liquors was held untenable. State 
ex rel. Crothers v. Barber, 19 S. D. 
1, 101 N. W. 1078. 

The power to prescribe the condi- 
tions which shall be expressed in 
insurance policies is legislative and 
cannot be delegated. Phenix Ins. 
Co. v. Perkins, 19 S. D. 59, 101 N. 
W. 1110. 

The commerce clause of the fed- 
eral constitution is not violated by 
Pol. Code §§2834, 2838 and 2852 
making it an offense for a traveling 



Art. III. § 1 



THE CONSTITUTION 



salesman to take orders for intoxi- 
cating liquors without a license. 
State v. Delamater. 20 S. D. 23. 104 
N. W. 537, - L. R. A. (N. S.) 774. 
129 Am. St. Rep. 90 7. 10 Ann. Cas. 
73 3. Affirmed in U. S. Supreme 
Court. 2u.~> r. S. 93, 51 L. ed. 7 24. 
2 7 Sup. Ct. Rep. 4 4 7. because of the 
Wilson Act of Congress of Aug. S. 

Ch. 114 '05 was within the police 
power of the state, except that §11 
constitutes an unreasonable interfer- 
ence with interstate and foreign 
commerce. Jewett Bros. & Jewett 
v. Smail. 20 S. D. 23 2. 10 5 N. W. 

There is no constitutional reason 
why legislative functions which are 
merely ministerial or executive in 
their character should not be dele- 
gated by that branch of the govern- 
ment to other departments or to 
bodies created by it for that pur- 
pose. Davenport v. Elrod. 2 S. D. 
^7. 107 N. W. S33. 

The provisions of ch. 194 *0 7 re- 
lating to the integrity and respon- 
sibility of applicants for permits to 
sell nursery stock cannot be sus- 
tained as a valid exercise of the po- 
lice power and conflict with the com- 
merce clause of the federal consti- 
tution, but the provisions requiring 
an inspection of nursery stock and 
the payment of a reasonable charge 
for the purpose of defraying the ex- 
penses of inspection are valid. Ex 
parte Hawlev. 2 2 S. D. 23. 115 X. 
. 15 L. R. A. (N. S.) 13 8. 

Under a constitutional provision 
which provides that the legislative 
power shall be vested in the legisla- 
ture it is held by practically all the 
courts that the legislature cannot 
abdicate or delegate its authority 
and that no legislative power can be 
conferred by an act of the legisla- 
ture upon any of the other depart- 
ments of the government or upon 
any other body or authority. Brook- 
ings Co. v. Murphv, 23 S. D. 311. 
121 N. W. 7 93. 

The necessity and expediency of 
exercising the right of eminent do- 
main are questions political and not 



judicial. C. M. & St. P. Ry. Co. v. 
Mason, 23 S. D. 564, 122 N. W. 601. 

Pol. Code §§ 1511 and 1513 re- 
lating to the exclusion of land from 
the limits of a city are not unconsti- 
tutional as investing the circuit 
court with legislative powers. Wick- 
hem v. City of Alexandria. 23 S. D. 
5 5 (5 . 12 2 X. W. 5 9 7. Heineman v . 
City of Alexandria. 32 S. D. 365, 143 
N. W. 2 91. 

In the absence of constitutional 
limitation the legislature has inher- 
ent plenary power to create, alter, or 
extend the boundaries of school dis- 
tricts though it make taxation more 
burdensome. Such power may be 
delegated. Stephens v. Jones, 24 S. 
D. 97, 123 N. W. 705. 

The "police power" is the power 
vested in the legislature to make all 
manner of wholesome and reason- 
able laws, either with or without 
penalties, not repugnant to the con- 
stitution, as it may judge to be for 
the good and welfare of the public. 
State v. Central Lbr. Co., 24 S. D. 
136. 123 N. W. 504. 42 L. R. A. (N. 
04; affirmed. 226 U. S. 15 7. 5 7 
L. ed, 16 4. 3 3 Sup. Ct. Rep. 6 6. 

Where a subject is within the 
police power it is for the legislature 
to say what the remedy shall be. 
Pol. Code §§ 2897-9 are within such 
police power. Am. Linseed Oil Co., 
v. Wheaton, 25 S. D. 60, 125 N. W. 
127. 41 L. R. A. (N. S. ) 149. 

It was competent for the legisla- 
ture to provide that a tax deed should 
be conclusive evidence of all the 
proceedings except such as were 
jurisdictional. Gibson v. Pekarek, 
D. 281, 126 X. W. 59 7. 2:: 
Ann. Cas. 944. 

§ 1849 Civ. Code is not beyond 
the legislative power. Peever Merc. 
Co., v. State Mut. F. Ins. Co., 25 S. 
D. 406, 127 N. W. 559. 

The word "legislature"' in U. S. 
Const. § 1 Art. 4 means the law mak- 
ing body or power of the state, hence 
it includes the people where the 
referendum has been invoked. So 
that ch. 223 '09 dividing the state 
into congressional districts is sub- 



THE CONSTITUTION 



Art. Ill, § 1, 



ject to the referendum. State ex rel. 
Schrader v. Polley, 2 6 S. D. 5, 127 
N. W. 848. 

The power of the court to declare 
a statute unconstitutional should 
only be exercised in a case free from 
all reasonable doubt. Queen City P. 
Ins. Co. v. Basford, 27 S. D. 164, 
130 N. W. 44. 

The provisions of §§ 883-5, Civ. 
Code, in so far as they prohibit re- 
sort to the courts of this state for 
the enforcement of valid interstate 
contracts are within the police 
power of the state. Sioux Remedy 
Co. v. Cope, 28 S. D. 397, 133 N. W. 
683. (Reversed in 235 U. S. 197, 
59 L. ed. 193, 35 Sup. Ct. Rep. 97.) 

Power conferred on city council 
by §§ 1509.10 Pol. Code to exclude 
land from city limits and power con- 
ferred by §§ 1511-12 Pol. Code on 
circuit court to review same are not 
legislative and may be reviewed by 
the courts regardless of the fact that 
the referendum was invoked upon 
the action of the city council. Heine- 
man v. City of Alexandria, 32 S. D. 
365, 143 N. W. 291. 

The legislative power, under the 
constitution, is plenary except in so 
far as its exercise is inhibited or 
limited by express constitutional pro- 
visions or necessary implication. 
Ohlwine v. Bushnell, 32 S. D. 426, 
143 N. W. 362. 

Whether by reason of the amend- 
ment of 1898 to this section South 
Dakota is or is not republican in its 
form of government is a political 
and not a judicial question. The ob- 
ject and effect of the amendment was 
not to grant the power to the legis- 
lature to authorize the referendum. 
It already had that power. The act 
of a board of city commissioners, 
under the commission form of gov- 
ernment, in granting permission to 
sell intoxicating liquors was a reso- 
lution within the meaning of this 
section and hence was subject to the 
referendum under § 39, ch. 86 '07 
State ex rel. Wagner, v. Summers, 
33 S. D. 40, 144 N. W. 730, 50 L. R. 
A. (N. S.) 206, 40 Ann. Cas. 860. 



The filling out of ia physical record 
card as a prerequisite to attendance 
of a pupil at school, held to be within 
the police power of the state and to 
be properly exercised by a board of 
education; the delegation of powers 
to the Boards of Health to make 
health regulations not being exclusive 
Streich v. Board of Ed., 34 S. D. 169, 
147 N. W. 779, L. R. A. 1915 A. 
632, Ann. Cas. 1917A, 760. 

When the railway company ob- 
tained its right of way it did so sub- 
ject to the rights of the public de- 
fined, or to be thereafter defined, by 
the legislature acting within its po- 
lice power. Town of Emery v. C. 
M. ■& St. P. Ry. Co., 35 S. D. 583, 
153 N. W. 655. 

The purpose of the initiative 
amendment was to reserve to the 
people a greater share in and con- 
trol over the legislative power but it 
did not take away from any other 
constitutional department of the 
state any of its powers except the 
veto power of the executive. Its 
purpose was not to curtail or limit 
the power of the legislature to enact 
laws but the purpose was to compel 
the enactment by the legislature of 
measures desired by the people and 
if the legislature neglected to act 
then the people by means of the ini- 
tiative might enact such measures. 
There being in the initiative amend- 
ment no prohibition, express or im- 
plied, against the power of the legis- 
lature to repeal an initiated law the 
legislature by ch. 25 8 '15 lawfully 
repealed the initiated act known as 
the Richards Primary Law submitted 
by ch. 201 '11 and adopted by popu- 
lar vote in November 1912. It is 
not required that an initiated law 
shall receive more than a majority 
of all the votes cast upon the meas- 
ure. State ex rel. Richards v. Whis- 
man, 36 S. D. 260, 154 N. W. 707. 
Writ of error dismissed by the U. S. 
Supreme Court for want of jurisdic- 
tion, 241 U. S. 643, 60 L. ed. 1218, 
36 Sup. Ct. Rep. 449. 

An order of the Public Examiner 
which directly declares that bank re- 
serves, in whole or in part, shall be 



Art. Ill, § 1. 



THE CONSTITUTION 



kept within the state and designates 
eertaiu cities as "reserve cities" and 
confers special rights, privileges and 
immunities upon banks within those 
cities involves an exercise of legis- 
lative power and discretion which 
cannot be delegated. St. Charles 
Bank v. Wingfield, 3 6 S. D. 493, 155 
X. YV. 776. 

Counties are local subdivisions of 
the state for governmental purposes 
and the legislative power over their 
fiscal affairs is unrestricted. State 
v. Board of Co. Comr's. 36 S. D. 606, 
156 N. W. 96. 

The legislative power to pass cur- 
ative statutes is without any limit 
except such as is imposed by con- 
stitutional restrictions or limitations. 
The manner of creating and organ- 
izing school districts and the bound- 
aries thereof is not limited or con- 
trolled by any provision of the con- 
stitution and is wholly within the 
legislative power and discretion. Vi- 
land v. Board of Education, 3 7 S. D. 
, 158 X. W. 906. 

An assessment for taxation of an 
express company on the "unit basis" 
would not violate the commerce 
clause of the federal constitution. 
Ewert v. Tavlor, 3 8 S. D. -, 160 

97 held to discriminate 
against interstate commerce. The 
constitutionality of a statute is not 
determined by what has been actu- 
ally done thereunder but by what 

be done. Minneapolis Brew. 

. McGillivray, 10 4 Fed. 2 5 8. 
The legislature does not look to 
the state constitution for power to 
act, but only looks to that instru- 
ment to see if the sovereign legisla- 
tive power is by the constitution re- 
stricted. § 43 7 Pol. Code is within 
the legislative power. Piatt v. Le- 
Cocq, 150 F. 391. On appeal to C. 
C. A. held that § 437 Pol. Code was 
not violated by the regulations of the 
express company complained of. 
Piatt v. LeCocq, 158 F. 723, 85 C. 
C. A. 621. 

D. law prohibiting sale of lard 

it in bulk or in packages of des- 

its does not violate the 



commerce clause of the federal con- 
stitution. The act is directed only 
to retail sales and not to the trans- 
portation to the state. Nor does the 
act violate the equal protection of 
the law because the state legislature 
possesses the power of classifying 
objects of legislation. Such power 
may be determined by degrees of 
evil or exercised in cases where det- 
riment is specially experienced. Nor 
does the act offend against the U. S. 
Pure Food and Drugs Act. Armour 
& Co. v. State of N. D., 240 U. S. 
510, 60 L. ed. 771, 36 Sup. Ct. Rep. 
440, affirming 27 N. D. 177, 145 N. 
W. 1033. 

"Blue Sky" Law, ch. 275 '15 is 
valid as incidentally or indirectly 
burdening interstate commerce until 
Congress acts. Caldwell v. S. F. 
Stock Yds. Co., 242 U. S. — , 61 L. 
ed. — , 37 Sup. Ct. Rep. 224. 

For exhaustive note on initiative 
and referendum see 50 L. R. A. (N. 
S.) 195. 

LAWS SUBMITTED UNDER INITIA- 
TIVE 

Ch. 179 '07, County Option, voted 
on Nov. 1908; yes, 39075; no, 41405. 

Ch. 30 '09, County Option voted on 
Nov. 1910; yes, 42416; no, 55372. 

Ch. 201 '11, Richards Primary Law 
voted on Nov. 1912; yes, 58139; 
no, 33256. 

Ch. 197 '13, Coffey Primary Law, 
voted on Nov. 1914; yes, 37106; no, 
44697. 

Ch. 255 '13, amending § 2856 Pol. 
Code, Liquor License, voted on Nov. 
1914; yes, 38000; no, 51779. 

Ch. 103 '15, Bank Law, voted on 
Nov. 1916; yes, 47,715; no, 52,205 

Ch. 104 '15, Bank Law, voted on 
Nov. 1916; yes, 47.925; no, 50,226. 

Ch. 259 '15, Richards Primary 
law, voted on Nov. 1916; yes. 5 2,- 
410; no, 52,733. 

LAWS SUBMITTED UNDER REF- 
ERENDUM 

Ch. 132 '07, Divorce, voted on Nov. 
1908; yes, 60211; no, 38794. 

Ch. 158 '07, Preservation of Quail, 
voted on Nov. 1908; yes, 65340; no, 
32274. 



THE CONSTITUTION Art. Ill, § 1, 



Ch. 234 '07, Sunday Law, voted on Ch. 112 '11, County Seats, voted on 

Nov. 1908; yes, 48378; no, 48006. Nov. 1912; yes, 49373; no, 27179. 

Ch. 27 '09, R. R. Headlight Law, Ch. 213 '11, R. R. Headlight Law, 

voted on Nov. 1910; yes, 37914; no, voted on Nov. 1912; yes, 93136; no, 

49938. 20523. 

Ch. 52 '09, Militia, voted on Nov. Ch. 254 '11, Herd Law, voted on 

1910; yes, 17852; no, 57440. Nov. 1912; yes, 56782; no, 30643. 

Ch. 107 '09, Suspension from Office Ch. 184 '13, Course of Study in 

voted on Nov. 1910; yes, 32160; no, Northern Normal School, voted on 

52152. Nov. 1914; yes, 27538; no, 49382. 

Ch. 211 '09, Embalmers, voted on Ch. 227 '15, amending § 2856 Pol. 

Nov. 1910; yes, 34560; no, 49496. Code, Liquor License, voted on Nov. 

Ch. 223 '09, Congressional L»is- 1916; yes, 49,174; no, 54,422. 
tricts, voted on Nov. 1910; yes, ch. 241 '15, Five-sixths Jury, vot- 

26918; no, 48883. ed on Nov. 1916; yes, 49.601: no, 

51,529. 

§ 2. The number of members of the house of representa- 
tives shall not be less than seventy-five nor more than one hun- 
dred and thirty-five. The number of members of the senate shall 
not be less than twenty-five nor more than forty-five. 

The sessions of the legislature shall be biennial except as 
otherwise provided in this Constitution. 

§ 3. No person shall be eligible to the office of senator who 
is not a qualified elector in the district from which he may be 
chosen, and a citizen of the United States, and who shall not have 
attained the age of tw T enty-five years, and who shall not have 
been a resident of the state or territory for two years next pre- 
ceding his election. 

No person shall be eligible to the office of representative who 
is not a qualified elector in the district from which he may be 
chosen, and a citizen of the United States, and who shall not have 
been a resident of the state or territory for two years next pre- 
ceding his election, and who shall not have attained the age of 
twenty-five years. 

No judge or clerk of any court, secretary of state, attorney 
general, state's attorney, recorder, sheriff or collector of public 
moneys, member of either house of congress, or person holding 
any lucrative office under the United States, or this state, or any 
foreign government, shall be a member of the legislature; Pro- 
vided, that appointments in the militia, the offices of notary pub- 
lic and justice of the peace shall not be considered lucrative; nor 
shall any person holding any office of honor or profit under any 
foreign government or under the government of the United 
States, except postmasters whose annual compensation does not 
exceed the sum of three hundred dollars, hold any office in either 
branch of the legislature or become a member thereof. 



Art. 111. $ 4. 



THE CONSTITUTION 



§ 4. No person who has been, or hereafter shall be, con- 
victed of bribery, perjury, or other infamous crime, nor any per- 
son who has been, or may be collector or holder of public 
moneys, who shall not have accounted for and paid over, accord- 
ing to law, all such moneys due from him, shall be eligible to the 
legislature or to any office in either branch thereof. 

§ 5. The legislature shall provide by law for the enumera- 
tion of the inhabitants of the state in the year one thousand eight 
hundred and ninety-five and every ten years thereafter; and at 
its first regular session, after each enumeration and also after 
each enumeration made by authority of the United States, but at 
no other time, the legislature shall apportion the senators and 
representatives according to the number of inhabitants, exclud- 
ing Indians not taxed and soldiers and officers of the United 
States army and navy. Provided, that the legislature may make 
an apportionment at its first session after the admission of South 
Dakota as a state. 



The provisions of this section are 
in their nature mandatory to the 
legislature but under our system of 
government there is no power to 
compel the legislative department to 
enact laws. Constitutions may re- 
strict legislative powers and declare 
what laws shall not be valid but 
from the very nature of legislative 



power its exercise in a particular 
case must depend upon the volition 
of the legislature. Responsibility to 
their constituents and a sense of 
public duty are the only incentive? 
that can prompt legislative action 
under this class of constitutional 
provisions. In re State Census, 6 S. 
1). 540, 62 N. W. 129. 



§ 6. The terms of the office of the members of the legisla- 
ture, shall be two years; they shall receive for their services the 
sum of five dollars for each day's attendance during the session 
of the legislature, and five cents for every mile of necessary 
travel in going to and returning from the place of meeting of the 
legislature on the most usual route. 

Each regular session of the legislature shall not exceed 
sixty days, except in cases of impeachment, and members of the 

Mature shall receive no other pay or perquisites except per 
diem and mileage. (As amended.) 



(The foregoing section (§6) was 
amended at the general election held 
in November, 1892, by reducing the 
mileage of the members from "ten" 



to "five" cents per mile pursuant to 
ch. 36 '91. Amendment for 4 years' 
term proposed by ch. 129 '13 reject- 
ed Nov. 1914). 



§ 7. The legislature shall meet at the seat of government 
on the first Tuesday after the first Monday of January at 12 
o'clock in., in the year next ensuing the election of members 
thereof, and at no other time excepl as provided by this consti- 
tution. 



10 THE CONSTITUTION Art. Ill, § 8. 



§ 8. Members of the legislature and officers thereof, before 
they enter upon their official duties, shall take and subscribe the 
following oath or affirmation: I do solemnly swear (or affirm) 
that I will support the constitution of the United States and the 
constitution, of the State of South Dakota, and will faithfully 
discharge the duties of (senator, representative or officer) ac- 
cording to the best of my abilities, and that I have not knowing- 
ly or intentionally paid or contributed anything, or made any 
promise in the nature of a bribe, to directly or indirectly influ- 
ence any vote at the election at which I was chosen to fill said 
office, and have not accepted, nor will I accept or receive directly 
or indirectly, any money, pass, or any other valuable thing, from 
any corporation, company or person, for any vote or influence I 
may give or withhold on any bill or resolution, or appropriation, 
or for any other official act. 

This oath shall be administered by a judge of the supreme or 
circuit court, or the presiding officer of either house, in the hall 
of the house to which the member or officer is elected, and the 
secretary of state shall record and file the oath subscribed by 
each member and officer. 

Any member or officer of the legislature who shall refuse to 
take the oath herein prescribed shall forfeit his office. 

Any member or officer of the legislature who shall be con- 
victed of having sworn falsely to, or violated his said oath, shall 
forfeit his office and be disqualified thereafter from holding the 
office of senator or member of the house of representatives or 
any office within the gift of the legislature. 

§ 9. Each house shall be the judge of the election returns 
and qualifications of its own members. 

A majority of the members of each house shall constitute a 
quorum, but a smaller number may adjourn from day to day, 
and may compel the attendance of absent members in such a 
manner and under such penalty as each house may provide. 

Each house shall determine the rules of its proceedings, shall 
choose its own officers and employees and fix the pay thereof, 
except as otherwise provided" in this constitution. 

§ 10. The governor shall issue writs of election to fill such 
vacancies as may occur in either house of the legislature. 

§ 11. Senators and representatives shall, in all cases ex- 
cept treason, felony or breach of the peace, be privileged from 
arrest during the session of the legislature, and in going to and 
returning from the same ; and for words used in any speech or 
debate in either house, they shall not be questioned in any other 
place. 



Art. Ill, § 12.* THE CONSTITUTION 11 

§ 12. No member of the legislature shall, during the term 
for which he was elected, be appointed or elected to any civil 
office in the state which shall have been created, or the emolu- 
ments of which shall have been increased during the term for 
which he was elected, nor shall any member receive any civil 
appointment from the governor, the governor and senate, or from 
the legislature during the term for which he shall have been 
elected, and all such appointments and all votes given for any 
such members for any such office or appointment shall be void; 
nor shall any member of the legislature during the term for 
which he shall have been elected, or within one year thereafter, 
be interested, directly or indirectly, in any contract with the state 
or any county thereof, authorized by any law passed during the 
term for which he shall have been elected. 

A member of the legislature em- Norbeck & N. Co. v. State, 32 S. D. 

ployed by the board of railroad com- 18 9, 142 N. W. 847, 3 9 Ann. Cas. 

missioned during the period of an 229. 

appropriation passed by such legisla- A contract with the state being in- 

ture cannot, recover for his services valid because authorized by the 

from the slate. Palmer v. State, li legislature of which the president 

S. D. V W. 818. and stockholder of the contracting 

Action in quantum meruit will not corporation was a member cannot be 

lie where the contract was between made the ground of recovery even 

the state and a corporation, of which though there may have been funds 

a member of the legislature was available for payment other than the 

president and stockholder, and was appropriation. Norbeck & N. Co. v. 

authorized by a law passed during State, 33 S. D. 21, 144 N. W. 658. 
the term for which he was elected. 

§ 13. Each house shall keep a journal of its proceedings 
and publish the same from time to time, except such parts as re- 
quire secrecy, and the yeas and nays of members on any question 
shall be taken at the desire of one-sixth of those present and 
entered upon the journal. 

The courts are concluded by the houses. Narregang v. Brown Co., 14 

properly authenticated enrolled bill S. D. 3 5 7, 85 N. W. 602; State ex 

on file in the office of the secretary rel. Lavin v. Bacon, 14 S. D. 394, 

.te of which the printed laws 85 X. W. 605; followed in Krakow- 
are prima facie evidence, and it is ski v. Waskey, 3 3 S. D. 3 3 5, 145 N. 

ubject to be impeached by the W. 566, notwithstanding ch. 167 '09. 
entries in the journals of the two 

§ 14. In all elections to be made by the legislature the mem- 
bers thereof shall vote viva voce and their votes shall be entered 
in the journal. 

§ 15. The sessions of each house and of the committee of 
the whole shall be open, unless when the business is such as 
ought to be kept secret. 



12 THE CONSTITUTION Art. Ill, § 16. 

§ 16. Neither house shall, without the consent of the other, 
adjourn for more than three days, nor to any other place than 
that in which the two houses shall be sitting. 

§ 17. Every bill shall be read three several times, but the 
first and second reading may be on the same day, and the second 
reading may be by title of the bill, unless the reading at length 
be demanded. The first and third readings shall be at length. 

A legislative act which makes the the constitution which requires every 

provisions of the standard policy of enactment to be twice read at length 

insurance a part of the law merely that the lawmakers may be advised 

by reference to a form on file in the of what they are doing. Phenix Ins. 

Insurance Commissioner's office Co. v. Perkins, 19 S. D. 59. 101 N. 

would be contrary to the spirit of W. 1110. 

§ 18. The enacting clause of a law shall be: "Be it enacted 
by the legislature of the State of South Dakota" and no law shall 
be passed unless by assent of a majority of all the members 
elected to each house of the legislature. And the question upon 
the final passage shall be taken upon its last reading, and the 
yeas and nays, shall be entered upon the journal. 

The legislature of 1893 by joint yeas and nays. The judges of said 

resolution asked the Governor to re- court declined to answer the inquiry, 

quest an opinion of the Supreme among other things, for the reason 

Court whether under the last sen- that Art 5 § 13 is confined to such 

tence of this section a concurrence questions as may raise a doubt in 

of the senate in house amendments the executive department, — never in 

to a senate bill must be by a ma- the legislative. In re Construction 

jority of the senators elect and of Constitution. 3 S. D. 54$, 54 N. 

whether the vote must be taken by W. 6 50, 19 L. R. A. 5 7 5. 

§ 19. The presiding officer of each house shall, in the 
presence of the house over which he presides, sign all bills and 
joint resolutions passed by the legislature, after their titles have 
been publicly read immediately before signing, and the fact of 
signing, shall be entered upon the journal. 

If a title to a joint resolution is stitution. Lovett v. Ferguson, 10 S. 
not absolutely required it is fully D. 44, 71 N. W. 7 6 5. 
recognized by this section of the con- 

§ 20. Any bill may originate in either House of the legisla- 
ture, and a bill passed by one house may be amended in the other. 

§ 21. No law shall embrace more than one subject, which 
shall be expressed in its title. 

The purpose of this section was. bills of which the titles gave no in- 

"first, to prevent 'hodge podge' or timation, and which might therefore 

'log rolling' legislation; second, to be overlooked, and carelessly and 

prevent surprise or fraud upon the unintentionally adopted; and third, 

legislature by means of provisions in to fairly apprise the people through 



Art. III. § 21. 



THE CONSTITUTION 



13 



Mich publication of legislative pro- 
ceeding? as is usually made, of the 
.subjects or" legislation that are being 
considered, in order that they may 
have opportunity of being heard 
thereon, by petition or otherwise, if 
they so desire.' - The subject must 
be single, yet all matters which are 
naturally and reasonably connected 
with it and all measures which may 
facilitate the accomplishment of the 
purpose are germane to the title. 
There is no constitutional restriction 

to the scope or magnitude of the 
single subject of a legislative act. 
The title need not index the details 
of the act. It is sufficient if the 
language used in the title, on a fair 
construction, indicates the purpose 
of the legislation so that making ev- 
ery reasonable intendment in favor 
of the act it may be said that the 
subject of the law is expressed in 
the title. State v. Morgan. 2 S. D. 
. 48 N. W. 314; writ of error dis- 
missed. 159 U. S. 2 61, 40 L. ed. 14 5, 
15 Sup. Ct. Rep. 1041. 

Even if the use of intoxicating 
liquors is a subject so distinct from 
snd foreign to the subject of their 
manufacture, sale and keeping for 
sale that it could not be legally 
joined with the latter subject still 

it is separable and may be elim- 
inated without affecting other pro- 
visions the subject of the use may be 
altogether rejected from the law and 
title. The danger lies in putting 
into the law what is not in the title 
more than in putting into the title 
what is not in the law. State v. 
Becker. 3 S. D. 29, 51 N. W. 1018; 

ate v. Mitchell, 3 S. D. 2 23, 5 2 N. 
W. 1052; writ of error dismissed. 
163 U. S. 696. 41 L. ed. 306, 16 
Sup. Ct. Rep. 1204. 

The subject of ch. 6 4 '9 5 is single. 
State v. Avers, 8 S. D. 517. 6 7 N. 
W. 611. 

The title of ch. 80 '91 is clearly 
sufficient to sustain the substantial 
features of the act and the title of 
the amendatory act. ch. 10 3 '95 is 
unobjectionable. Miles v. Benton 
Twp.. li S. D. 450, 78 N. W. 1004. 

The title of ch. 41 '97 was suffi- 



ciently broad to include the submis- 
sion of the question of the change 
in the boundaries to the voters of 
Stanley county. Stuart v. Kirley. 
12 S. D. 245, SI N. W. 147. 

The title to ch. 94 '01 embraces 
only one subject, viz: the authority 
of counties to fund outstanding in- 
debtedness. It was not necessary 
for the title to indicate the character 
of the indebtedness to be funded. 
Walling v. Luminis, 16 S. D. 349, 
92 N. W. 1063. 

The subjects now embraced in §§ 
2148, 2149 Pol. Code were clearly 
within the scope of the titles of the 
general revenue acts of 18 91 and 
189 7. Harris v. Stearns, 17 S. D. 
43 9, 9 7 N. TV. 3 61. 

The contention that ch. 7 2 '97 as 
construed was a prohibitory law in- 
stead of a license law and w r as there- 
fore unconstitutional because the 
term "prohibition" was not used in 
the title was held to be without 
merit. State ex rel. Crothers v. Bar- 
ber, 19 S. D. 1. 101 N. W. 1078. 

Ch. 7 2 '9 7 contains but one sub- 
ject which is expressed in its title 
and the provisions of §§ 11 and 16 
thereof are germane to the act. Gar- 
rigan v. Kennedy, 19 N. W. 11, 101 
N. W. 1081, 117 Am. St. Rep. 927, 
8 Ann. Cas. 1125; Palmer v Schurz, 
22 S. D. 283, 117 N. W. 150. 

The title to ch. 163 '0 5 providing 
for a Capitol Commission etc. and 
providing for funds therefor was not 
double. The subject was the con- 
struction of a capitol building and 
the use of funds was a natural, rea- 
sonable and appropriate means of 
accomplishing the purpose and there- 
fore germane to the title. Daven- 
port v. Elrod, 20 S. D. 567, 107 N. 
W. 833. 

The title of ch. 139 '07 contains 
one general subject and the contents 
of the act are germane thereto. Mor- 
row v. Wipf, 22 S. D. 146, 115 N. 
W. 1121. 

The title to ch. 135 '07, contains 
but one subject, viz: the establish- 
ment of a uniform system of educa- 
ion. This section should be liber- 



14 



THE CONSTITUTION 



Art. Ill, § 21. 



ally construed. Stephens v. Jones, 
24 S. D. 97, 123 N. W. 705. 

That part of ch. 218 '07, which 
does not relate to double damages 
violates the constitution because not 
expressed in the title of the act. Bek- 
ker v. White Riv. Val. Ry. Co., 28 
S. D. 84, 132 N. W. 797. 

Thos'e portions of ch. 215 '07, 
purporting to relieve the party dam- 
aged from proving negligence on the 
part of the railway company not 
being represented in the title of the 
act are invalid. Kennedy v. C. M. 
& St.iP. Ry. Co., 28 S. D. 94, 132 
N. W. 802. 

Ch. 40, '05, held to embrace mat- 
ters not expressed in its title. Pier- 
son v. Minnehaha Co., 28 S. D. 534, 
134 N. W. 212, 38 L. R. A. (N. S.) 
261. 

The penalties prescribed for a vio- 
lation of ch. 4 '09, are germane to 
the title of the act. State v. Carlisle, 
30 S. D. 475, 139 N. W. 127. 

The titile to ch. 222, '0 9 does not 
conflict with this provision of the 
constitution. State v. McPherson, 
30 S. D. 547, 139 N. W. 368. State 
v. Stewart, 30 S. D. 585, 139 N. W. 
371. 

Since the title of ch. 73, '05 did 
not include accident nor casualty 
companies ch. 243, 1909 which pur- 
ports to amend said act by including 
acident and casualty companies with- 
in its provisions, violates this sec- 
tion of the constitution. Met. Cas. 
Ins.- Co. v. Basford, 31 S. D. 149, 139 
N. W. 795. 

The title to the act adopting the 
Revised Pol. 'Code of 1903 is not 
obnoxious to this section in that Art. 
29 of ch. 27 is not specifically em- 
braced therein, indeed the title would 
have been sufficient if it had merely 
been, "An act to provide a Revised 
Political Code for the State of South 
Dakota." Wilson v. Western Sure- 
ty Co., 31 S. D. 175, 140 N. W. 
263; State v. Devers, 3 2 S. D. 473, 
143 N. W. 364; Street v. Farmers 
El. Co., 34 S. D. 523, 149 N. W. 429. 

Whether the title to ch. 125, '99 
was adequate not determined in as 



much as it is incorporated in the 
Revised Civil Code, the title to which 
is broad enough to cover the section 
incorporated. J. P. Schaller Co. v. 
Canistota Gr. Co., 32 S. D. 15, 141 
N. W. 993. State ex nel Kronschna. 
bel v. Issenhuth, 34 S. D. 218, 148 
N. W. 9; State v. Horner, 35 S. D. 
612, 153 N. W. 766. 

The title to ch. 90, '07 is not 
broad enough to include liability for 
death and the words "or death" in 
said act held to be surplusage. Rowe 
v. Richards, 32 S. D. 66, 142 N. W. 
664, L. R. A. 1915E 1069. 

The title to ch. 180, 07 purport- 
ing to be merely regulatory will not 
carry legislation confiscatory of vest- 
ed rights or establishing new rules 
of evidence or pleading nor legisla- 
tion tending to interfere with the 
constitutional jurisdiction of courts. 
St. Germain Irr. D. Co. v. Hawthorne 
D. Co., 32 S. D. 260, 143 N. W. 124. 

The title to ch. 207, '11 is broad 
enough to embrace the provisions of 
section 12 imposing a penalty for a 
carrier's refusal to pay damages with- 
in 30 days after demand. Dunlap v. 
C. M. & St. P. Ry. Co., 32 S. D. 581, 
144 N. W. 226. 

The title to ch. 134 '07 is broad 
enough to cover the terms of the act 
authorizing the exercise of the power 
of eminent domain, providing meth- 
ods for apportioning benefits and for 
levying assessments. Milne v. Mc- 
Kinnon, 3 2 S. D. 6 2 7, 144 N. W. 
117. 

The game law, ch. 240, '09 em- 
braces but one subject which is ex- 
pressed in its title. State v. Kirby 
34 S. D. 281, 1'48 N. W. 533. 

The title of an act should never 
be construed or required to be an 
index of the contents of the act. 
Cessna v. Otho D. & P. Co.. 35 S. D. 
557, 153 N. W. 380. 

§ 2 ch. 94 '07 being superseded 
by sub. 79 § 53 ch. 119 '13 it is 
unimportant whether or not the title 
to the act of 190 7 is sufficient. Mur- 
phy Liquor Co. v. Medbery, 3 5 S. D. 
589, 153 N. W. 654. 

An interpretation of §2 ch. 128 '09 



Art. Ill, § 21 



THE CONSTITUTION 



15 



making it apply to a claim for dam- 
ages arising in tort would bring it 
outside the title of the act. Haley 
& Lang Co. v. City of Huron, 3 6 S. 
D. 6, 153 N. W. S91. 

The title to ch. 206 '13 held to 
comply with this section. State v 
Board of Co. Com'rs. 3 6 S. D. 606. 
15 6 N. W. 9 6. 



The title to ch. 



>9 '13 held not 



to express the subject matter of the 



act, the title being too explicit and 
misleading. State ex rel. Gabel v. 
Young, 37 S. D. — , 157 N. W. 325. 
The subject of ch. 125 '13 is sin- 
gle and only one subject is expressed 
in the title of the act. The title 
would have been ample if it had sim- 
ply said "An act to amend section 
1170 Rev. Pol. Code." State ex rel. 
Millerke v. Nisbet. 3 8 S. D. — , 161 
N. W. 3 51. 



§ 22. 



No act shall take effect until ninety days after the ad- 
journment of the session at which it passed, unless in case of 
emergency, (to be expressed in the preamble or body of the act) 
the legislature shall by a vote of two-thirds of all the members 
elected of each house, otherwise direct. 



The provision in the repealing 
clause of an act excepting "contracts 
now existing" relates not to the time 
of the passage and approval of the 
act but to the date it took effect. 
Long v. Collins. 12 S. D. 6 21, S2 N. 
W. 95. 

This section construed with sec- 
tion one of this article held to fur- 
nish an additional exception to the 
law? which are subject to the refer- 
endum. State ex rel. Lavin v. Ba- 
con. 14 S. D. 3 94. 85 N. W. 605; 
reversed in State ex rel. Richards v. 
Whisman. infra. 

Ch. 90 'n7 did not take effect un- 
til July 1. '07 and was therefore in- 
applicable to an accident occurring 
after the approval of the act but 



prior to its taking effect. Baldwin 
v. City of Aberdeen. 2 3 S. D. 63 6, 
123 N. W. 80, 26 L. R. A. (N. S. I 
116. 

Since the adoption of the initia- 
tive amendment to the constitu- 
tion the legislature has been with 
out power to declare an emergency 
to exist in the enactment of a law 
and thereby preclude the application 
of the referendum thereto unless the 
act be one within the class excepted 
from the operation of the referen- 
dum. State ex rel. Richards v. Whis- 
man, 36 S. D. 260, 154 N. W. 707. 
Writ of error dismissed for want of 
jurisdiction, 241 U. S. 6 43, 6 L. ed. 
1218, 36 Sup. Ct. Rep. 449. 



See 



:0. Rev. Pol. Code. 



§ 23. The legislature is prohibited from enacting any pri- 
vate or special laws in the following cases: 
i. Granting divorces. 

2. Changing the names of persons or places, or constituting 
one person the heir at law of another. 

3. Locating or changing county seats. 

4. Regulating county and township affairs. 

5. Incorporating cities, towns and villages or changing or 
amending the charter of any town, city or village, or laying out, 
opening, vacating or altering town plats, streets, wards, alleys 
and public ground. 

6. Providing for sale or mortgage of real estate belonging 
to minors or others under disability. 



16 THE CONSTITUTION Art. Ill, § 23. 

7. Authorizing persons to keep ferries across streams 
wholly within the state. 

8. Remitting fines, penalties or forfeitures. 

9. Granting to an individual, association or corporation any 
special or exclusive privilege, immunity or franchise whatever. 

10. Providing for the management of common schools. 

11. Creating, increasing or decreasing fees, percentages or 
allowances of public officers during the term for which said offi- 
cers are elected or appointed. 

But the legislature may repeal any existing special law re- 
lating to the foregoing subdivisions. 

In all other cases where a general law can be applicable no 
special law shall be enacted. 

County option law, ch. 70 '87 was D. — . 158 N. W. 90 6. 
not special legislation. Ter. ex rel. § 1 ch. 9 8 '9 5 making the ex- 

McMahon v. O'Connor, 5 Dak. 3 9 7, penses incurred by a county in car- 

41 N. W. 746, 3 L. R. A. 3 5 5. ing for an insane person, in certain 

Ch. 173 '8 7 providing for relocat- cases, a charge against his estate is 

ing county seats, which by its terms not special but general legislation 

could apply to only one county, is since it applies to all persons within 

special legislation. Adams v. Smith, a designated class. Bon Homme 

6 Dak. 94, 50 N. W. 720; appeal to Co. v. Berndt, 13 S. D. 309, 83 N. 

U. S. Supreme Court dismissed, 130 W. 3 3 3, 5 L. R. A. 3 51. 
U. S. 167, 32 L. ed. 895, 9 Sup. Ct. The legislature in carrying into 

Rep. 56 6. effect the intention of the framers 

The last sentence of this section of the constitution as expressed in 

is designed as a guide to the legis- the last sentence of this section will 

lature and that body must itself de- not be presumed to have enacted a 

termine whether or not a general special law when a general law 

law can be made applicable to the would be applicable. Heyler v. City 

subject. Stuart v. Kirley, 12 S. D. of Watertown. 16 S. D. 25, 91 N. 

245, 81 N. W. 147. Followed in W. 334. 
Viland v. Board of Education, 37 S 

§ 24. The legislature shall have no power to release or ex- 
tinguish in whole or in part, the indebtedness, liability or obli- 
gation of any corporation or individual to this state, or to any 
municipal corporation therein. 

Ch. 8 4 '9 7 was ineffectual for the legislature was without power 

any purpose. If there was no exist- to release it. State v. Mellette, 16 

ing liability to the state it was un- S. D. 2 9 7, 9 2 N. W. 3 9 5. 
necessary. If any obligation existed 

§ 25. The legislature shall not authorize any game of 
chance, lottery or gift enterprise, under any pretense," or for any 
purpose whatever. 

§ 26. The legislature shall not delegate to any special com- 
mission, private corporation or association, any power to make, 
supervise or interfere with any municipal improvement, money, 



Art. Ill, $ 26. THE CONSTITUTION 17 

property, effects, whether held in trust or otherwise, or levy 
taxes, or to select a capital site, or to perform any municipal 
functions whatever. 

Ch. 16 3 '05 creating the State functions of the Commission not be- 
Capitol Commission does not violate ing municipal. Davenport v. Elrod. 
the provisions of this section, the 2 S. D. 5 6 7. 10 7 N. W. S33. 

^ 27. The legislature shall direct by law in what manner 
and in what courts suits may be brought against the state. 

This section in no maner relates State ex rel. Egan v. Norbeck & N. 
to actions brought by the state or Co.. 38 S. D. — . 160 N. W. 521. 
by individuals on behalf of the state. 

§ 28. Any person who shall give, demand, offer, directly or 
indirectly, any money, testimonial, privilege or personal advan- 
tage, thing of value to any executive or judicial officer or mem- 
ber of the legislature, to influence him in the performance of any 
of his official or public duties, shall be guilty of bribery and shall 
be punished in such manner as shall be provided by law. 

The offense of corrupt solicitation of members of the legis- 
lature, or of public officers of the state, or any municipal division 
thereof, and any effort towards solicitation of said members of the 
ature. or officers to influence their official actions shall be 
defined by law, and shall be punishable by fine and imprisonment, 

Any person may be compelled to testify in investigation or 
judicial proceedings against any person charged with having 
committed any offense of bribery or corrupt solicitation, and 
shall not be permitted to withhold his testimony upon the ground 
that it may criminate himself, but said testimony shall not after- 
wards be used against him in any judicial proceeding except for 
bribery in giving such testimony, and any person convicted of 
either of the offenses aforesaid, shall be disqualified from hold- 
ing any offire or position or office of trust or profit in this state. 

ARTICLE IV. 

EXECUTIVE DEPARTMENT 

§ 1. The executive power shall be vested in a governor who 
shall hold his office two years. A lieutenant governor shall be 
elected at the same time and for the same term. 

The much disputed question the power to appoint a member of 

whether a court can ever control the the Board of Medical Examiners the 

action of the Governor even though Governor is not performing a mere 

the act sought to be controlled is ministerial act. Phelps v. Byrne, 36 

but ministerial in its nature was not S. D. 3 60. 154 N. W. 825. 
determined since in the exercise of 



18 THE CONSTITUTION Art. IV, § 2. 

§ 2. No person shall be eligible to the office of governor or 
lieutenant governor except a citizen of the United States and a 
qualified elector of the state, who shall have attained the age of 
30 years, and who shall have resided two years next preceding 
the election within the state or territory; nor shall he be eligible 
to any other office during the term for which he shall have been 
elected. 

§ 3. The governor and lieutenant governor shall be elected 
by the qualified electors of the state at the time and places of 
choosing members of the legislature. The persons respectively 
having the highest number of votes for governor and lieutenant 
governor shall be elected; but if two or more shall have an equal 
and highest number of votes for governor or lieutenant governor, 
the two houses of the legislature at its next regular session shall 
forthwith, by joint ballot, choose one of such persons for said 
office. The returns of the election for governor and lieutenant 
governor shall be made in such manner as shall be prescribed by 
law. 

§ 4. The governor shall be commander-in-chief of the mili- 
tary and naval forces of the state, except when they shall be 
called into the service of the United States, and may call out the 
same to execute laws, suppress insurrection and repel invasion. 
He shall have powder to convene the legislature on extraordinary 
occasions. He shall, at the commencement of each session, com- 
municate to the legislature by message, information of the con- 
dition of the state, and shall recommend such measures as he 
shall deem expedient. He shall transact all necessary business 
with the officers of the government, civil and military. He shall 
expedite all such measures as may be resolved upon by the legis- 
lature, and shall take care that the laws be faithfully executed. 

For a discussion of the co-ordina- der the care and control of the Gov- 

tion of the executive and legislative ernor as commander in chief of the 

powers with reference to the militia military forces of the state, until the 

see Stanton v. State, 5 S. D. 515, 5 9 legislature makes other provision. In 

N. W. 738. re Opinion of Judges, 13 S. D. 191, 

Land of the Ft. Sisseton Military 83 N. W. 96. 

Reservation conditionally granted to See note, State ex rel. Morris v. 

the state by Act of Congress is un- Handlin under Art. XV § 2. 

§ 5. The governor shall have the power to remit fines and 
forfeitures, to grant reprieves, commutations and pardons after 
conviction, for all offenses except treason and cases of impeach- 
ment; Provided, that in all cases where the sentence of the court 
is capital punishment, imprisonment for life, or for a longer term 
than two years, or a fine exceeding two hundred dollars, no par- 
don shall be granted, sentence commuted or fine remitted, except 
upon the recommendation in writing of the board of pardons, con- 



Art. IV, § 5. THE CONSTITUTION 19 

sisting of the presiding judge, secretary of state and attorney 
general, after full hearing in open session, and such recommen- 
dation, with the reasons therefor, shall be filed in the office of 
the secretary of state; but the legislature may by law in all cases 
regulate the manner in which the remission of fines, pardons, 
commutations and reprieves, may be applied for. Upon convic- 
tion for treason he shall have the power to suspend the execution 
of the sentence until the case shall be reported to the legislature 
at its next regular session, when the legislature shall either. par- 
don or commute the sentence, direct the execution of the sen- 
tence or grant a further reprieve. He shall communicate to the 
legislature at each regular session each case of remission of fine, 
reprieve, commutation or pardon, granted by him in the cases in 
which he is authorized to act without the recommendation of the 
said board of pardons, stating the name of the convict, the crime 
of which he is convicted, the sentence and its date, and the date 
of Ihe remission, commutation, pardon or reprieve, with his rea- 
sons for granting the same. 

§ 6. In case of death, impeachment, resignation, failure to 
qualify, absence from the state, removal from office, or other dis- 
ability of the governor, the powers and duties of the office for the 
residue of the term, or until he shall be acquitted, or the dis- 
ability removed, shall devolve upon the lieutenant governor. 

§ 7. The lieutenant "governor shall be president of the sen- 
ate, but shall have only a casting vote therein. If during a va- 
cancy in the office of governor the lieutenant governor shall be 
impeached, displaced, resign or die, or from mental or physical 
disease or otherwise become incapable of performing the duties 
of his office, the secretary of state shall act as governor until the 
vacancy shall be filled or the disability removed. 

§ 8. When any office shall from any cause become vacant 
and no mode is provided by the constitution or law for filling 
such vacancy, the governor shall have the power to fill such va- 
cancy by appointment. 

Under this section the Governor term of office has expired, therefore 
had authority to fill a vacancy, caus- upon such termination a vacancy 
ed by resignation, in the office Re- arises which the Governor is author- 
gent of Education and such appoint- ized to fill. State ex rel. Wood v. 
ment covered the entire period of Sheldon. 8 S. 1). 525, 67 N. W. 613. 
the unexpired term of the member The same principles last above 
who resigned. State ex rel. Holmes noted were applied to the case of a 
v. Finnerud. 7 S. D. 237, 64 N. W. vacancy on the board of charities 
121. and corrections. State ex rel. Lavin 

No provision is made that a regent v. Bacon, 14 S. D. 284, 85 N. W. 

of education holds over after his 2 25. 



20 THE CONSTITUTION Art. IV, § 9. 

§ 9. Every bill which shall have passed the legislature, 
shall, before it becomes a law, be presented to the governor. If 
he approve, he shall sign it, but if not, he shall return it with 
his objection to the house in which it originated, which shall en- 
ter the objection at large upon the journal and proceed to recon- 
sider it. If after such reconsideration, two-thirds of the mem- 
bers present shall agree to pass the bill, it shall be sent, together 
with the objection, to the other house, by which it shall likewise 
be reconsidered, and if it be approved by two-thirds of the mem- 
bers present, it shall become a law; but in all such cases the vote 
of both houses shall be determined by the yeas and nays, and 
the names of the members voting for and against the bill shall be 
entered upon the journal of each house respectively. If any bill 
shall [not] be returned by the governor within three days (Sun- 
day excepted) after it shall have been presented to him, the 
same shall be a law, unless the legislature shall by its adjourn- 
ment prevent its return; in which case it shall be filed, with his 
objection, in the office of the secretary of state, within ten days 
after such adjournment or become a law. 

For the meaning of the words Adams v. Herreid, 10 S. D. 109, 72 
■'enter at large" see State ex rel. N. W. 93. 

§ 10. The governor shall have power to disapprove of any 
item or items of any bill making appropriations of money em- 
bracing distinct items, and the part or parts of the bill approved 
shall be law, and the item or items disapproved shall be void, un- 
less enacted in the following manner: If the legislature be in 
session he shall transmit to the house in which the bill originated 
a copy of the item or items thereof disapproved, together with 
his objections thereto, and the items objected to shall be sep- 
arately reconsidered, and each item shall then take the same 
course as is prescribed for the passage of bills over the execu- 
tive veto. 

§ 11. Any governor of this state who asks, receives or 
agrees to receive any bribe upon any understanding that his offi- 
cial opinion, judgment or action shall be influenced thereby, or 
who gives, or offers, or promises his official influence in consider- 
ation that any member of the legislature shall give his official 
vote or influence on any particular side of any question or mat- 
ter upon which he may be required to act in his official capacity, 
or who menaces any member by the threatened use of his veto 
power, or who offers or promises any member that he, the said 
governor, will appoint any particular person or persons to any 
office created or thereafter to be created, in consideration that 
any member shall give his official vote or influence on any mat- 



Art. IV. § 11. THE CONSTITUTION 21 

ter pending or thereafter to be introduced into either house of 
said legislature or who threatens any member that he, the said 
governor, will remove any person or persons from any office or 
position with intent to in any manner influence the official action 
of said member, shall be punished in the manner now, or that 
may hereafter be provided by law, and upon conviction thereon 
shall forfeit all right to hold or exercise any office of trust or 
honor in this state. 

§ 12. There shall be chosen by the qualified electors of the 
state at the time and places of choosing members of the legis- 
lature, a secretary of state, auditor, treasurer, superintendent of 
public instruction, commissioner of school and public lands, and 
an attorney general, who shall severally hold their offices for the 
term of two years, but no person shall be eligible to the office of 
treasurer for more than two terms consecutively. They shall re- 
spectively keep their offices at the seat of government. 

§ 13. The powers and duties of the secretary of state, audi- 
tor, treasurer, superintendent of public instruction, commission- 
er of school and public lands and attorney general shall be as 
prescribed by law. 

The attorney general is in the legislative power to create a new 

same department of service as the office. State v. Becker. 3 S. D. 29. 

states attorney but having a larger 51 N. W. 1018. 

jurisdiction and is in a sense a su- Ch. 90 '9 7 created a new office, 

perior and supervising officer. It designating the person who should 

would be competent for the legisla- perform its duties instead of adding 

ture to authorize the attorney gen- such duties to the office of secre- 

eral to appoint an assistant for him- tary of state hence he could retain 

self or an assistant or deputy states the fees in addition to his salary. 

attorney. This would not be dele- State v. Roddle. 12 S. D. 43 3, 81 

gating to the attorney general th-3 N. W. 980. 

ARTICLE V. 

JUDICIAL DEPARTMENT 

§ 1. The judicial powers of the state, except as in this con- 
stitution otherwise provided, shall be vested in a supreme court, 
circuit courts, county courts, and justices of the peace, and such 
other courts as may be created by law for cities and incorporated 
towns. 

For a discussion of judicial and power. State v. Mitchell, 3 S. D. 

-judicial power see Spencer v. 223, 52 N. W. 1652 of error 

Sully Co., 4 Dak. 474, 33 N. W. 97 dismissed. 163 V. S. 'I!..;. 41 L. ed 

and Champion v. Board of Co. 306, 16 Sup. Ct. Rep. 1204 

Com'rs, 5 Dak. 416, 41 N. W. 739. Under this section and section 2: ( . 

Section 13 ch. 101 '90 as con- of this article there was no merit in 

strued held not to be a legislative the claim that the police justice of 

encroachment upon the judicial Sioux Falls had no authority to act 



22 



THE CONSTITUTION 



Art. V, § 1. 



as a committing magistrate. State 
v. Wright, 15 S. D. 6 2 8, 91 N. W. 
311. 

By §§ 1511, 1512 Pol. Code the 
legislature did not confer legislative 
power on the courts. ' Wickhem v. 
City of Alexandria, 23 S. D. 5 56, 
122 N. W. 597; Heineman v. City of 
Alexandria, 3 2 S. D. 3 6 5, 143 N. 
W. 291. 

A "judicial power" can only be 
exercised by a court. A "quasi-judi- 
cial power," being one involving 
judgment and discretion may be con- 
ferred upon an executive or admin- 
istrative board. Hoyt v. Hughes Co., 
32 S. D. 117, 142 N. W. 471. 

The sections of ch. 28 Pol. Code 
giving to Children's Home Society 
plenary power over children commit- 
ted to it seem inconsistent with and 



in derogation of the power which 
should remain vested in the courts. 
State ex rel. S. D. Children's Home 
Soc. v. Kelley, 32 S. D. 526, 143 N. 
W. 953. 

As to invasion of the judicial pow- 
er, see note under § 2 Art. 6, in 
Street v. Farmers El. Co., 34 S. D. 
523, 149 N. W. 429. 

The commission provided for by 
§ 69 ch. 135 '07 is not a judicial 
tribunal. Smithwick Sch. Dist. v. 
Lincoln Sch. Dist., 37 S. D. 38, 156 
N. W. 587. 

Act of North Dakota legislature 
validating void county contracts held 
not an infringement upon the judi- 
cial power. Erskine v. Steele Co., 
8 7 Fed. 63 0; affirmed Steele Co. v. 
Erskine, 98 Fed. 215, 39 C. C. A. 
173. 



§ 2. The supreme court, except as otherwise provided in 
this constitution, shall have appellate jurisdiction only, which 
shall be co-extensive with the state, and shall have a general 
superintending control over all inferior courts under such regu- 
lations and limitations as may be prescribed by law. 



The question whether the county 
board of Hughes county had author- 
ity to establish voting precincts 
within the limits of the unorganized 
counties of Nowlin and Sterling 
while geographically local in char- 
acter was in its effect and scope gen- 
eral. Therefore and because of the 
immediately ensuing election and 
the public importance of an early 
determination the Supreme Court 
took original jurisdiction of the pro- 
ceeding in certiorari. State ex rel. 
Dollard v. Board, 1 S. D. 292, 46 N. 
W. 1127, 10 L. R. A. 588. 

This section makes provision first 
for the appellate jurisdiction and 
second for the general superintend- 
ing control of the supreme court 
over all inferior courts. It clearly 
defines the primary jurisdiction and 
points out specifically the power and 
authority it is primarily intended the 
Supreme Court shall exercise. Ev- 
eritt v. Board of Com'rs, 1 S. D. 
365, 47 N. W. 296. 

The "general superintending con- 



trol of all inferior courts" vested in 
the supreme court materially en- 
larges its jurisdiction. It has au- 
thority, to be exercised within its 
judicial discretion, to issue writs to 
review the proceedings of subordi- 
nate courts in cases where the action 
complained of is beyond the discre- 
tionary power of such courts or 
where there is an abuse of such dis- 
cretion and the remedy by appeal 
is inadequate and the case is urgent 
and the circumstances require 
prompt action to prevent injustice 
and injury. City of Huron v. Camp- 
bell, 3 S. D. 309, 53 N. W. 182. 

This section does not attempt to 
define or prescribe in what cases an 
appeal may be taken to the supreme 
court. McClain v. Williams, 10 S. 
D. 332, 73 N. W. 72, 43 L. R. A, 
287. 

Under the peculiar circumstances 
disclosed the Supreme Court deemed 
the case one in which its enlarged 
powers under its superintending 
control should be exercised and 



Art. VJ2. 



THE CONSTITUTION 



23 



granted mandamus to the circuit 
court to entertain plaintiff's appli- 
cation for a determination of the 
question whether the county judge 
was disqualified to hear the McClel- 
lan ease. Vine v. Jones, 13 S. D. 
54, 82 N. W. 82. 

The jurisdiction of the supreme 
court being appellate such jurisdic- 
tion could he acquired over a crim- 
inal action only in the manner then 
authorized by law, viz: by writ of 
error and not by appeal. State v. 
Cram. 20 S. D. 159, 105 N. W. 99. 

In State ex rel. Null v. Circuit 
Court. 20 S. D. 122, 104 N. W. 1048, 
the supreme court in the exercise 
of its •superintending control" re- 
quired the trial court to cause copies 
of lost indictments to be filed. In 
State v. Kaufmann, 20 S. D. 6 20, 
108 N. \Y. 246, the supreme court 
in the exercise of its "superintending 
control" admitted defendant to bail. 

The supreme court has jurisdiction 
to grant temporary alimony and suit 
money pending an appeal as inci- 
dental to and inherent in its appel- 
late jurisdiction. Wells v. Wells, 26 
S. D. 70, 127 N. W. 636. Tuttle v. 
Tuttle, 26 S. D. 95, 127 N. W. 637. 

W T hile in equity cases the supreme 
court may vacate findings of fact as 
contrary to the weight of evidence, 
it cannot determine questions of fact 



or direct the entry of particular find- 
ings by the trial court, its jurisdic- 
tion being strictly appellate. Som- 
ers v. Somers, 34 S. D. 594, 149 N. 
W. 558. 

The supreme court is without or- 
iginal jurisdiction of an application 
for relief from a default judgment 
where the cause is before that court 
on appeal from the refusal of the 
trial court to vacate the judgment 
solely for want of jurisdiction. 
Straub v. Lyman L. & I. Co., 32 S. 
D. 213, 142 N. W. 734. 

It is not to be doubted that upon 
appeal the supreme court may direct 
the trial court to enter a final judg- 
ment when its views are such as to 
determine absolutely and finally, as 
to matters of law, the rights of the 
parties. Archer v. Tubbs Sheep Co.. 
25 S. D. 399, 126 N. W. 577; Somers 
v. Somers, 34 S. D. 594, 149 N. W. 
558. 

The jurisdiction of the supreme 
court is primarily appellate in the 
course of which it also exercises su- 
perintending control over inferior 
courts. State ex rel. Egan v. Nor- 
beck & N. Co., 38 S. D. — , 160 N. 
W. 524. 

Mandamus in aid of appellate ju- 
risdiction, see McClellan v. Carland, 
217 U. S. 268, 54 L. ed. 762, 30 
Sup. Ct. Rep 501. 



§ 3. The supreme court and the judges thereof shall have 
power to issue writs of habeas corpus. The supreme court shall 
also have power to issue writs of mandamus, quo warranto, cer- 
tiorari, injunction and other original and remedial writs, with 
authority to hear and determine the same in such cases and un- 
der such regulations as may be prescribed by law; Provided, 
however, that no jury trials shall be allowed in said supreme 
court, but, in proper cases questions of fact may be sent by said 
court to a circuit court for trial before a jury. 



Our statute on certiorari, inher- 
ited from the territory, is sui gen- 
eris. The scope of the writ is ex- 
tended so that it fairly brings up 
for consideration the record of the 
proceedings of a county board in 
election matters whether judicial or 
Otherwisi ex rel. Dollard v. 



Board, 1 S. D. 292, 46 N. W. 1127, 
10 I.. R. A. 5 8 8. 

The constitutional provision, while 
usin^ the term "writ of quo war- 
ranto" means the special proceeding 
which has become the remedy now 
in general use as a substitute for 
the ancient writ. State ex rel. Mc- 



24 



THE CONSTITUTION 



Art. V, § 3. 



Gee v. Gardner, 3 S. D. 553, 54 N. 
W. 606. 

The court is without jurisdiction 
to enjoin the secretary of state from 
certifying to the county auditors for 
election purposes a claimed invalid 
proposal to amend the constitution 
for the reason that the relator, an 
elector and tax payer, did not show 
such interest in the matter as 
would entitle him to be heard and 
because the courts are without power 
to enjoin the legislature from pass- 
ing laws, even unconstitutional laws. 
State ex rel. Cranmer v. Thorson, 9 
S. D. 149, 68 N. W. 202, 33 L. R. 
A. 582. 

The distinction between quo war- 
ranto and prohibition pointed out. 
Davenport v. Elrod, 20 S. D. 567, 
107 N. W. 833. 

Original application in supreme 
court for mandamus denied on the 
ground that relator's rights were 
private and local and that it had 
an adequate remedy by appeal. State 
ex rel. Dak. Cent. Tel. Co. v. City of 
Huron, 23 S. D. 153, 120 N. W. 
1008. 



Original jurisdiction was conferred 
upon the Supreme Court to be exer- 
cised by it only in cases which in 
the judgment of that court call for 
its exercise. Everitt v. Board of 
Com'rs, 1 S. D. 365, 47 N. W. 296. 
Stanley Co. v. Jackson Co.. 3 6 S. D. 
350, 154 N. W. 806. 

Mandamus is not the proper rem- 
edy to compel the Governor to ap- 
point an honorably discharged sol- 
dier to office. Phelps v. Byrne, 3 6 
S. D. 369, 154 N. W. 825. 

Constitutions are drafted and 
adopted in the light of the then 
established law of the territory or 
state and words used therein are to 
be given their statutory meaning. 
Accordingly it was held that § 777 

C. C. P. did not authorize the Su- 
preme Court to issue a writ of pro- 
hibition to restrain a ministerial act. 
State ex rel. Byrne v. Ewert, 3 6 S. 

D. 622, 156 N. W. 90. 

An ordinary action at law does 
not come within the purview of this 
section even though it in form be 
styled an ex rel. proceeding. State 
ex rel. Egan v. Norbeck & N. Co.. 
38 S. D. — , 160 N. W. 524. 



§ 4. At least two terms of the supreme court shall be held 
each year at the seat of government. 

§ 5. The supreme court shall consist of three judges, to be 
chosen from districts by qualified electors of the state at large, 
as hereinafter provided. 

§ 6. The number of said judges and districts may, after five 
years from the admission of this state under this constitution, be 
increased by law to not exceeding five. 

§ 7. A majority of the judges of the supreme court shall be 
necessary to form a quorum or to pronounce a decision, but one 
or more of said judges may adjourn the court from day to day, or 
to a day certain. 



(Amendment proposed by ch. 135 
1913 rejected Nov. 1914). 

Where a majority of the judges 
yv&s disqualified by reason of in- 
terest it was held that such rule of 
disqualification must give way to the 



superior constitutional right to a for- 
um in which rights may be adjudicat- 
ed. State ex rel. Null v. Polley, 3 4 
S. D. 565, 13S N. W. 300, 42 L. R. 
A. (N. S.) 788. 



Art. V. § 8. THE CONSTITUTION 25 

§ 8. The term of the judges of the supreme court, who shall 
be elected at the first election under this constitution, shall be 
four years. At all subsequent elections the term of said judges 
shall be six years. 

The terms and salaries of the su- Hauser v. Seeley, 18 S. D. 30 8. 10 
preme and circuit judges are N. W. 43 7. 
definitely fixed by the constitution. 

§ 9. The judges of the supreme court shall by rule select 
from their number a presiding judge, who shall act as such for 
the term prescribed by such rule. 

§ 10. No person shall be eligible to the office of judge of the 
supreme court unless he be learned in the law, be at least thirty 
years of age. a citizen of the United States, nor unless he shall 
have resided in this state or territory at least two years next pre- 
ceding his election and at the time of his election be a resident of 
the district from which he is elected; but for the purpose of re- 
election, no such judge shall be deemed to have lost his residence 
in the district by reason of his removal to the seat of govern- 
ment in the discharge of his official duties. 

No one is eligible to the office of at law in this state. Jamieson v. 

judge of the supreme court who is Wiggin, 12 S. D. 16, 80 N. W. 13 7. 

not when elected either admitted, or 46 L. R. A. 317, 7 6 Am. St. Rep. 

entitled to be admitted without ex- 585. 
animation, to practice as an attorney 

§ 11. Until otherwise provided by law, the districts from 
which the said judges of the supreme court shall be elected shall 
be constituted as follows: 

First District— All that portion of the state lying west of the 
Missouri river. 

Second District — All that portion of the state lying east of 
the Missouri river and south of the Second standard parallel. 

Third District — All that portion of the state lying east of the 
Missouri river and north of the Second standard parallel. 

(For the present five districts; See 
ch. 109, '09.) 

§ 12. There shall be a clerk and also a reporter of the su- 
preme court, who shall be appointed by the judges thereof and 
who shall hold office during the pleasure of said judges, and 
whose duties and emoluments shall be prescribed by law, and by 
the rules of the supreme court not inconsistent with law. The 

iature shall make provisions for the publication and distri- 
bution of the decisions of the supreme court, and for the sale of 
the published volumes thereof. No private person or corpora- 
tion shall be allowed to secure any copyright to such decisions. 



26 



THE CONSTITUTION 



Art. V, § 12. 



but if any copyrights are secured they shall inure wholly to the 
benefit of the state. 

§ 13. The governor shall have authority to require the 
opinions of the judges of the supreme court upon important 
questions of law involved in the exercise of his executive powers 
and upon solemn occasions. 



Opinions Given. 

(1) As to the constitutionality of 
§§18 and 19 ch. 14 '91 allowing 
deductions for indebtedness from the 
value of property liable to taxation. 
In re Construction of Revenue Law, 

2 S. D. 58, 48 N. W. 813. Same 
opinion in re Assessment and Col- 
lection of Taxes, 4 S. D. 6, 54 N. 
W. 818. 

(2) As to the construction of § 7 
of the Education Law, being § 7 
sub. ch. 9 ch. 56 '91. In re Con- 
struction of School Law, 2 S. D. 71. 
48 N. W. 812. 

(3) As to the power of the legis- 
lature to provide under any circum- 
stances for a state tax in excess of 
two mills. In re Limitation of Tax- 
ation, 3 S. D. 456, 54 N. W. 417. 

(4) As to vacancy in the Supreme 
Court, how to be filled and for what 
term. In re Supreme Court Vacancy. 
4 S. D. 532, 57 N. W. 495. 

(5) As to the legality of ch. 91 
and 92 '95 providing for the issue of 
state warrants to defray current ex- 
penses based on revenues assessed 
but not collected. In re State War- 
rants, 6 S. D. 518, 62 N. W. 101, 55 
Am. St. Rep. 85 2. 

(6) As to the necessity that the 
legislature of 18 95 provide for an 
1895 census, although the judges 
were doubtful as to their duty to 
give the opinion. In re State Cen- 
sus, 6 S. D. 540, 62 N. W. 129. 

(7) As to the construction of ch. 

3 2 '9 5 providing for the issue of 
bonds to reimburse the school funds 
for losses caused by the defalcation 
of the State Treasurer. In re State 
Bonds, 7 S. D. 42, 63 N. W. 223. 

(8) As to which department of 
the state has the care and control 
of the land granted to the state for- 
merly constituting a part, of the Ft. 



Sisseton Military Reservation. In re 
Opinion of Judges, 13 S. D. 191, 83 
N. W. 96. 

(9) As to the constitutionality of 
Rural Credits Acts, chapters 333 
and 334 Laws, 1917. In re Opin- 
ion of the Judges 162 N. W. . 

Opinions Declined. 

(1) As to whether under Art. 3 
§ 18 a concurrence of the Senate in 
House amendments to a Senate bill 
must be by a majority vote of the 
senators elect and whether the vote 
must be taken by yeas and nays. 
Opinion declined for the reason that 
Art. 5 § 13 is confined to such ques- 
tions as may raise a doubt in the 
executive department, — never in the 
legislature. In re Construction of 
Constitution, 3 S. D. 5 48, 54 N. W. 
650, 19 L. R. A. 575. 

(2) As to the construction of ch. 
6 '90 involving the duration of the 
terms of office of certain Regents of 
Education. Opinion declined be- 
cause a construction of the statute 
would substantially affect the rights 
of persons acting as Regents of Ed- 
ucation without their having an op- 
portunity to be heard. In re Ch. 6 
Session Laws 1S90, 8 S. D. 274, 66 
N. W. 310. 

(3) As to the constitutionality of 
House Joint Resolution 3 0, being 
ch, 83 '97 and the appropriation 
therefor, viz: § 33 ch. 10 '97. De- 
clined for like reasons as the pre- 
ceding. In re House Resolution No. 
30, 10 S. D. 249, 72 N. W. 892. 

(4) As to the constitutionality of 
§§ 16-23, ch. 64 '07 or as re-enacted 
by ch. 3 47 '13. As the avowed pur- 
pose of the inquiry was to secure a 
decision which would bind the fed- 
eral courts in the Express Company 
taxation cases it was held that the 
questions asked did not involve the 



Art. V, $ 13. 



THE CONSTITUTION 



27 



exercise of the executive powers. The 
judges were also of the opinion that 
the occasion was not a solemn one 
within the meaning of this section 
of the constitution. 

Only the gravest and most urgent 
necessity will justify the judges of 
the supreme court in rendering an 
exparte opinion upon the request of 
the Governor where private rights 
are concerned. Such opinion does not 



amount to a decision of the court 
but is merely the advisory opinion 
of the judges. The rule of duty of 
federal courts to follow the decisions 
of the supreme court of a state in 
matters pertaining to construcion of 
the state constitution does not apply 
to an advisory opinion of the judges 
given pursuant to this section. In re 
Opinion of Judges. 3 4 S. D. 650, 147 
N. W. 729. 



CIRCUIT COURTS 

§ 14. The circuit courts shall have original jurisdiction of 
all actions and causes, both at law and in equity, and such appel- 
late jurisdiction as may be conferred by law and consistent with 
this constitution; such jurisdiction as to value and amount and 
grade of ofTense may be limited by law. They and the Judges 
thereof shall also have jurisdiction and power to issue writs of 
habeas corpus, mandamus, quo warranto, certiorari, injuction 
and other original and remedial writs with authority to hear and 
determine the same. 



These courts, subject to certain 
conditions and qualifications are the 
successors of the territorial District 
Courts. The distinction between the 
function of mandamus and quo war- 
ranto explained. Driscoll v. Jones. 
1 S. D. 8. 44 N. W. 726. 

The jurisdiction conferred upon 
inferior courts was intended to be 
and is adequate and affords ample 
facilities to litigants in all cases for 
the redress and protection of local 
or private rights. As the power to 
issue extraordinary writs is also con- 
ferred upon the circuit courts and 
judges it is not to be presumed that 
the framers of the constitution in- 
tended that the Supreme Court 
should ordinarily exercise a concur- 
rent jurisdiction with the circuit 
court in all cases in which these 
writs might afford an appropriate 
remedy. Everitt v. Board of Com'rs, 
1 S. D. 365. 4 7 N. W. 296. 

The power to issue injunctions, 
being conferred on the judges of the 
circuit court, cannot be taken away 
by any lef action. When the 

judge deems it proper to exercise 
thp power in him by making 



the order a chambers order instead 
of a court order such exercise of 
discretion cannot be controlled by 
the Supreme Court. Black Hills F. 
& M. Co. v Grand Island & W. C. 
Ry. Co., 2 S. D. 546, 51 N. W. 342; 
Holden v. Haserodt. 3 S. D. 4. 51 N. 
W. 340. 

The power of a circuit judge to is- 
sue a writ of mandamus is entirely 
distinct from and independent of his 
power to "hold court". Holden v. 
Haserodt, 3 S. D. 4, 51 N. W. 340. 

Since the circuit court has original 
jurisdiction of all cases at law and 
in equity it has such jurisdiction 
over misdemeanors, including assault 
and battery, and upon an indictment 
charging a felony the jury may ac- 
quit of the felony and convict of the 
constituent misdemeanor. State v. 
Finder, 10 S. D. 103, 72 N. W. 97. 

The state courts have concurrent 
jurisdiction with the federal courts 
of causes of action for injuries to 
interstate shipments of live stock 
though such shipments are governed 
exclusively by federal law. Jackson 
v. C. & N. W. Rv: Co.. 3 4 S. D. 153, 
147 N. W. 7! 



28 



THE CONSTITUTION 



Art. V, § 14 



The authority of the legislature to 
vest jurisdiction in the circuit courts 
over the matters contained in ch. 
28 Pol. Code is beyond question. 
State ex rel. Kronschnabel v. Issen- 
huth, 34 S. D. 218, 148 N. W. 9. 

The substantive liability fixed by 
the Carmack Amendment to the In- 
terstate Commerce Commission Act 
may be enforced by a state court as 
well as by a federal court. Elliott v. 
C. M. & St. P. Ry. Co., 35 S. D. 57, 
150 N. W. 777. 

The provision that "the circuit 
courts shall have original jurisdic- 
tion of all actions and causes both 
at law and in equity," included all 
the equity powers as they were un- 
derstood at the time of the adoption 
of the constitution and therefore 
such courts were vested with the 
same jurisdiction over probate pro- 



ceedings that was then possessed by 
the federal courts. Such jurisdic- 
tion is however limited and will only 
be exercised in special cases. Welsh 
v. Krause, 38 S. D. — . 161 N. W. 
189. 

An Indian allottee may maintain 
actions in the state courts for the 
redress of wrongs against his person 
or property. Blackbody t. Maupin, 
162 N. W. 393. 

As to the jurisdiction of courts of 
equity over the estates of decedents 
see McClellan v. Carland, 187 Fed. 
915, 110 C. C. A. 49; s. c. 217 U. 
S. 268, 54 L. ed. 762. 30 Sup. Ct. 
501. 

Priority between jurisdiction of 
state and federal courts. Hardin v. 
Union Tr. Co., 191 F. 152. Ill C. C. 
A. 632. 



§ 15. The state shall be divided into judicial circuits, in 
each of which there shall be elected by the electors thereof one 
judge of the circuit court therein, whose term of office shall be 
four years. 

The terms and salaries of the su- Hauser v. Seeley, IS S. D. 308, 100 
preme and circuit judges are def- N. W. 437. 
initely fixed by the constitution. 

§ 16. Until otherwise ordered by law, said circuits shall be 
eight in number and constituted as follows, viz: 

Note. — The boundaries of, and 
times of holding courts in, the pres- 
ent twelve circuits are found in the 
following laws: 

First Circuit, ch. 192 '17. 

Second Circuit, ch. 193 '17, and 
ch. 95 '05. and ch. 156 '13. 

Third Circuit, ch. 226 '09. 

Fourth Circuit, ch. 194 '17. 

Fifth Circuit, ch. 195 '17. 

Sixth Circuit, ch. 141 '15. 

Seventh Circuit, ch. 142 '15. 

Eighth Circuit, ch. 114 '11. 

Ninth Circuit, ch. 196 '17. 

§ 17. The legislature may, whenever two-thirds of the 
members of each house shall concur therein, increase the num- 
ber of judicial circuits and the judges thereof, and divide the 
state into judicial circuits accordingly, taking care that they be 
formed of compact territory and be bounded by county lines; but 
such increase of number or change in the boundaries of districts 



Tenth Circuit, ch. 115 '11. 

Eleventh Circuit, ch. 197 '17. 

Twelfth Circuit, ch. 158 '13. 

See generally ch. 189 '11. 

As to liability of state to a county 
for expenses of criminal trials aris- 
ing in an unorganized county at- 
tached to such county for judicial 
purposes see Morgan v. State, 9 S. 
D. 230. 68 N. W. 538; 11 S. D. 396. 
7 8 N. W. 19; Lyman Co. v. State, 9 
S. D. 413, 69 N. W. 601; 11 S. D. 
391, 78 N. W. 17. 



Art. V, § 17. THE CONSTITUTION 29 

shall not work the removal of any judge from his office during 
the term for which he shall have been elected or appointed. 

§ 18. Writs of error and appeals may be allowed from the 
decisions of the circuit courts to the supreme court under such 
regulations as may be prescribed by law. 

No appeal lies to the supreme hibits the legislature from limiting 
court from a judge's order. As § 18 appeals to a defined class of cases 
provides for appeals only from deci- and prescribing at what stage and 
sions of the circuit courts it may be in what court ordinary litigation 
a question whether it is competent shall end. The right to an appeal 
for the legislature to provide for ap- is not a common law right but de- 
peals from the order of a judge even pends on the statute when not espe- 
if it desired to do so. Black Hills cially granted by the constitution. 
F. & M. Co. v. Grand Island & W. McClain v. Williams, 10 S. D. 3 3 2. 
C. Ry. Co.. 2 S. D. 546, 51 N. W T . 73 N. W. 72, 43 L. R. A. 287. 
342- Holden v. Haserodt, 3 S. D. 4. The right of appeal is purely stat- 
."1 N. W. 3 40. utory. It is not conferred by the 

The words "may be allowed" are constitution. State v. Stunkard, 28 

here used in their proper sense as S. D. 311, 133 N. W. 253. State v. 

permissive and not in the sense of Hueremann. 38 S. D. — , 159 N. W. 

•must" or "shall". None of the 398. 
provisions of the constitution pro- 

COUNTY COURTS 

§ 19. There shall be elected in each organized county a 
county judge who shall be judge of the county court of said 
county, whose term of office shall be two years until otherwise 
provided by law. 

Neither the salary nor the term Hauser v. Seeley, 18 S. D. 308, 100 
of office of the county judge is def- N. W. 43 7. 
initely fixed by the constitution. 

§ 20. County courts shall be courts of record and shall have 
original jurisdiction in all matters of probate, guardianship, and 
settlement of estates of deceased persons, and such other civil 
and criminal jurisdiction as may be conferred by law; Provided, 
that such courts shall not have jurisdiction in any case where 
the debt, damage, claim or value of property involved shall ex- 
ceed one thousand dollars, except in matters of probate, guard- 
ianship and the estates of deceased persons. Writs of error and 
appeal may be allowed from county to circuit courts, or to the 
supreme court in such cases and in such manner as may be pre- 
scribed by law: Provided, that no appeal or writ of error shall be 
allowed to the circuit court from any judgment rendered upon 
an appeal from a justice of the peace or police magistrate for 
r-ities or towns. 

County courts are courts of lim- diction as may be conferred by law." 
ited and special jurisdiction as to Appellate courts take judicial notice 
"surh othpr civil and criminal juris- of the organization, jurisdiction and 



30 



THE CONSTITUTION 



Art. V, § 20. 



judges of the inferior courts. The 
supreme court therefore took judi- 
cial notice that Moody county be- 
longed to the class of counties whose 
jurisdiction was limited to $500. 
Nelson v. Ladd, 4 S. D. 1, 5 4 N. W. 
809. 

A county court of one county has 
no jurisdiction of an action against 
a single defendant resident of and 
served in another county. Defend- 
ant did not waive this objection by 
afterwards appearing generally in 
the action, he having excepted to the 
denial of his motion to dismiss. Ben- 
edict v. Johnson, 4 S. D. 387, 57 N. 
W. 66. 

A bastardy proceeding is neither 
civil nor criminal in the strict sense 
of those terms but is quasi-criminal. 
There is therefore no "debt, damage, 
claim or value of property involved" 
in the sense in which those terms 
are used in this section, hence the 
legislature had the power to confer 
by ch. 24 '93 jurisdiction in the 
county courts over such proceedings. 
State v. Scott, 7 S. D. 619. 65 N. W. 
31; State v. Bunker, 7 S. D. 639, 65 
N. W. 33. 

See note McClain v. Williams § 18 
supra. 

The county court, being a court of 
general jurisdiction in respect to 
probate matters, has inherent power 
to punish criminal contempts al- 
though the statutes designate partic- 
ular cases in which it may compel 
obedience to its orders by proceed- 
ings as for contempt. In re Taber, 
13 S. D. 62, 82 N. W. 398. 

The county court, in the course of 
administration of an estate, has ju- 
risdiction to construe a will so far 
as necessary to administer the es- 
tate, but has no jurisdiction of an 
independent action to obtain a con- 



struction of the will. In re Sjur- 
son's Est., 29 S. D. 566. 137 N. W. 
341. 

Conceding, without deciding, that 
ch. 104 '09 infringes the jurisdiction 
of the county court, and that the 
state may not exercise its right to 
reduce escheated property to posses- 
sion or to sell or dispose of it pend- 
ing administration, and that the 
county court may not by its decree 
of distribution award escheated prop- 
erty to the state, yet the state is an 
interested party at least to an extent 
which permits it to appear and con- 
test the alleged rights of other 
claimants to the property. In re 
Est. of McClellan. 31 S. D. 641, 141 
N. W. 965. 

The definition and limitation of 
guardianship is in the legislature. 
§§ 3205-14 Pol. Code relative to de- 
pendent and neglected children and 
ch. 2 9 8, '09 relative to delinquent 
children are not within the purview 
of that jurisdiction designated as 
"guardianship" vested in the county 
courts by this section. State ex rel. 
Kronschnabel v. Issenhuth, 34 S. D. 
218, 148 N. W. 9. 

This section does not purport to 
confer upon county courts exclusive 
original jurisdiction over all matters 
in probate nor does it divest any 
other court of any probate jurisdic- 
tion it possessed at the adoption of 
the constitution. Welsh v. Krause, 
38 S. D. — , 161 N. W. 189. 

The legal custody of an estate by 
the county court is no obstacle to 
the exercise of jurisdiction by the 
federal courts to determine heirship. 
McClellan v. Carland, 217 U. S. 268, 
54 L. ed. 762, 30 Sup. Ct. Rep. 501. 
McClellan v. Carland, 187 F. 915. 
110 C. C. A. 49. 



§ 21. The county court shall not have jurisdiction in cases 
of felony, nor shall criminal cases therein be prosecuted by in- 
dictment; but they may have such jurisdiction in criminal mat- 
ters, not of the grade of felony, as the legislature may prescribe, 
and the prosecutions therein may be by information or other- 
wise as the legislature may provide. 



Art. V, § 21. THE CONSTITUTION 31 

This section is not violated by of felony relates to the jurisdiction 

bastardy act. ch. 24 '93 conferring of the court as a trial court and it 

jurisdiction upon county courts. See is not infringed by ch. 186 '07 which 

note under § 20. State v. Scott, 7 makes county judges magistrates. A 

S. D. 619, 6 5 N. W. 31; State v. county judge sitting as a magistrate 

Bunker. 7 S. D. 63 9, 6 5 N. W. 33. is not sitting as a county court. 

The provision that county courts State v. Sonnenschein, 37 S. D. — , 

shall not have jurisdiction in cases 156 N. W. 906. 

JUSTICE OF THE PEACE 

§ 22. Justices of the peace shall have such jurisdiction as 
may be conferred by law, but they shall not have jurisdiction of 
any cause wherein the value of the property or the amount in 
controversy exceeds the sum of one hundred dollars, or where 
the boundaries or title to real property shall be called in question. 

Where the pleadings in Justice though the jury may find the value 

Court show the value of the property exceeds $100. Peoples Sec. Bk. v. 

to be $100 or less, that court has Sanderson, 24 S. D. 443, 123 N. W. 

jurisdiction and hence the circuit 873. 
court has jurisdiction on appeal 

POLICE MAGISTRATE 

§ 23. The legislature shall have power to provide for creat- 
ing such police magistrates for cities and towns as may be deem- 
ed from time to time necessary, who shall have jurisdiction of 
all cases arising under the ordinances of such cities and towns, 
respectively, and such police magistrates may also be constituted 
ex-officio justices of the peace for their respective counties. In 
cities having a population of five thousand or over the legislature 
may provide, in lieu of police magistrates, for municipal courts, 
the judges whereof shall be chosen in such manner as the legis- 
lature shall prescribe, which courts shall have exclusive original 
jurisdiction of all cases, both civil and criminal, cognizable be- 
fore a justice of the peace under the laws of the state, and in 
which process shall be served within the city where such court 
is established: and shall also have exclusive original jurisdiction 
of all cases arising under the ordinances of such city. Such court 
shall also have jurisdiction co-extensive with the county in 
which such city is situated, in such civil and criminal cases as 
may be provided by law. 

(As amended Nov. 1906, pursuant v. Wright, 15 S. D. 628, 91 N. W. 

to ch. 6 9 '0 5.) 311. 

Under this section and section 1 Municipal courts have jurisdiction 

of this article there was no merit in of an action for damages based on 

the claim that the police justice of the rescission of a contract as dis- 

Sioux Falls had no authority to act tinguished from an action brought to 

as a committing magistrate. State rescind a contract. Sweeney v. Unit- 



3 2 



THE CONSTITUTION 



Art. V, § 23. 



ed Underwriters Co., 25 S. D. 1, 124 
N. W. 1107. 

Municipal courts do not have jur- 
isdiction of a counter-claim wherein 
specific performance of a contract is 
sought. Poulson v. Markus, 34 S. 
D. 428, 148 N. W. 855. 

Whether a change of venue may 
be had from a municipal court in a 
case over which it has exclusive or- 
iginal jurisdiction undetermined 
since in the instant case its jurisdic- 
tion was concurrent with the circuit 



court. Rumeley Products Co. v. 
Stakke, 36 S. D. 330, 154 N. W. 828. 
Under this section it is within the 
legislative power to make the elec- 
tion laws of commission governed 
cities applicable to the election of 
judges of municipal courts in such 
cities and to make the election laws 
of non-commission governed cities 
applicable to the election of judges 
of such courts in those cities. Rog- 
ers v. Walsh, 36 S. D. 599, 156 N. 
W. 88. 



STATES ATTORNEY 

§ 24. The legislature shall have power to provide for state's 
attorneys and to prescribe their duties and fix their compensa- 
tion; but no person shall be eligible to the office of attorney gen- 
eral or state's attorney who shall not at the time of his election 
be at least twenty-five years of age and possess all the other 
qualifications for judges of circuit courts as prescribed in this 
article. 



The attorney general is in the 
same department of service as the 
states attorney but having a larger 
jurisdiction and is in a sense a su- 
perior and supervising officer. It 
would be competent for the legisla- 
ture to authorize the attorney gen- 
eral to appoint an assistant for him- 
self or an assistant or deputy states 
attorney. This would not be dele- 
gating to the attorney general the 
legislative power to create a new 
office. State v. Becker, 3 S. D. 29. 
51 N. W. 1018. 

There is nothing in the constitu- 
tion indicating an intention to pro- 
hibit an attorney at law though un- 
der 25 years of age who possesses 
the other qualifications of states at- 
torney from acting as a deputy when 
appointed in the manner provided by 
statute. State v. Phelps, 5 S. D. 
480, 59 N. W. 471. 

Assuming that a notice of election 
contest was defective in not alleg- 
ing that contestant was learned in 
the law, it was obviated by an equiv- 
alent averment contained in the an- 
swer. McMahon v. Polk, 10 S. D. 
296, 73 N. W. 77, 47 L. R. A. 830. 

Plaintiff's certificate of admission 



in the state of Illinois would have 
established the fact that he was 
learned in the law and was therefore 
eligible to hold the office of state's 
attorney. Howard v. Burns, 14 S. 
D. 383, 85 N. W. 920. 

By the use of the word "attorney" 
in this section the framers of the 
constitution meant a duly licensed 
attorney, hence one who was disbar- 
red was ineligible. Under this sec- 
tion, by reference to § 25 of this Art., 
the candidate must be learned in the 
law. Where an attorney has been 
disbarred for violation of legal ethics, 
which is one of the branches required 
by Pol. Code § 686 to be considered 
in passing upon the qualifications of 
one seeking admission to the bar, 
he is not learned in the law since 
it will be presumed that the violation 
occurred through ignorance and not 
through willfulness. Danforth v 
Egan, 23 S. D. 43, 119 N. W. 1021 
139 Am. St. Rep. 1030, 20 Ann 
Cas. 418. 

The office of states attorney is 
"imbedded" in the constitution. 
State v. Flavin, 3 5 S. D. 530. 153 N. 
W. 296. 






Art. V 



THE CONSTITUTION 



33 



MISCELLANEOUS 

\ No person shall be eligible to the office of judge of 
the circuit or county courts, unless he be learned in the law, be 
at least twenty-five years of age, and a citizen of the United 
States: nor unless he shall have resided in this state or territory 
at least one year next preceding his election, and at the time of 
his election be a resident of the county or circuit, as the case may 
be. for which he is elected. 



If it was necessary that a notice 
of election contest for the office of 
county judge show that contestant 
I the requisite qualifications 
for such office the allegations in the 
notice that he was an elector of the 
county, was duly nominated and 
.uly elected to said office were 
sufficient; Church v. Walker. 10 S. 
J2 N. W. 101; but in such 
case the eligibility of either candi- 
date n?ed not be alleged, the issue 
being who received the majority of 
the legal votes cast. Church v. 
7 4 N. W. 198. 
igible to the office of 
judge of the circuit or county court 
is not when elected either ad- 



mitted, or entitled to be admitted 
without examination, to practice as 
an attorney at law in this state. Ja- 
mieson v. Wiggin. 12 S. D. 16, SO 
N. W. 137. 46 L. R. A. 317, 76 Am. 
St. Rep. 5 

Plaintiff's certificate of admission 
in the state of Illinois would have 
established the fact that he was 
learned in the law and was there- 
fore eligible to hold the office of 
state's attorney. Howard v. Burns. 
14 S. D. 38 W. 920. 

The phrase "learned in the law," 
construed. Danforth v. Egan, 23 S. 
D. 43, 119 N. W. 1021, 139 Am. St. 
Rep. 1030. 20 Ann. Cas. 418. 



§ 26. The judges of the supreme court, circuit courts and 
county courts shall be chosen at the first election held under the 
provisions of this constitution, and thereafter as provided by law. 
and the legislature may provide for the election of such officers 
on a different day from that on which an election is held for any 
other purpose, and may. for the purpose of making such pro- 
vision, extend or abridge the term of office for any of such judges 
Ihen holding, but not in any case more than six months. The 
term of office of all judges of circuit courts, elected in the several 
judidal circuits throughout the state, shall expire on the same 
da v. 



Under this section the time of 
holding judicial elections after the 
first was left to the discretion of the 
legislature and until the legislature 
made provision therefor there was 
no law for the holding of a judicial 
election. State ex rel. McGee v. 
Gardner. 3 S. D. 553, .",4 N. W. 606. 

This section, construed with the 



power of the legislature to fix the 
time of judicial elections, held to au- 
thorize ch. 118, '01. The right to 
extend or diminish the term of office 
six months for the purpose of fixing 
the time of judicial elections held a 
continuing right. State ex rel. Null 
v. Pollev. 3 4 S. I). 5 6;-). 138 X. W. 
300, 12 L. B. A. (N. S. » 788. 



7. The time of holding courts within said judicial cir- 
cuits and counties shall be as provided by law: hut a1 lonst one 



34 THE CONSTITUTION Art. V, § 27. 

term of the circuit court shall be held annually in each organized 
county, and the legislature shall make provision for attaching 
unorganized counties or territory to organized counties for judi- 
cial purposes. 

There is nothing in the constitu- Authority existed in the circuit 

tion inconsistent with § 4828 Comp. judge to order a term at any time 

L. authorizing circuit courts to hear prior to the date fixed by law for the 

and determine motions at any plaec first regular term in the county. In 

in the judicial circuit. Benedict v. re Nelson, 19 S. D. 214. 102 N. W. 

Ralya, 1 S. D. 167, 46 N. W. 188. 885. 

§ 28. Special terms of said courts may be held under such 
regulations as may be provided by law. 

If subsequent legislation was re- ■ Code a special term of court called 

quired to give effect to this section by the judge of a circuit court upon 

it became operative by reason of ch. his own motion was a valid term as 

10 5 '90 which in effect re-enacted to those having notice of it and 

Comp. L. § 426. In re Nelson, 19 present in court. State v. Fullerton 

S. D. 214, 102 N. W. 885. Lbr. Co. 35 S. D. 410, 152 N. W. 

Under this section and § 661 Pol. 708. 

§ 29. The judges of the circuit courts may hold courts in 
other circuits than their own, under such regulations as may be 
prescribed by law. 

This section does not touch the presiding judge of that circuit is di- 

power of a circuit judge to do any vested of all jurisdiction over the 

official act except to "hold court", case for all purposes affecting any 

hence under ch. 7 9 '90 the judge of substantial right of the accused, 

the eighth circuit may hear and de- State v. Finder, 12 S. D. 423, 81 N. 

termine in his own circuit an appli- W. 9 5 9. 

cation for a writ of mandamus in a Under this section and ch. 84, '05 

proceeding in the seventh circuit. an oral request by the resident judge 

Holden v. Haserodt, 3 S. D. 4, 51 is sufficient to authorize the judge 

N. W. 3 40. of another circuit to act. State v. 

When another judge is called in Montgomery, 26 S. D. 539, 128 N. 

for the trial of a particular case the W. 718. 

§ 30. The judges of the supreme court, circuit courts and 
county courts shall each receive such salary as may be pro- 
vided by law, consistent with this constitution, and no such judge 
shall receive any compensation, perquisite or emoluments for or 
on account of his office in any form whatever, except such salary; 
Provided, that county judges may accept and receive such fees 
as may be allowed under the land laws of the United States. 

Neither the salary nor the term of where is not "compensation," "per- 

office of the county judge is definite- quisite," nor "emolument" within 

ly fixed by the constitution. Hauser the meaning of this section but is an 

v. Seeley, 18 S. D. 308, 100 N. W. expense allowance which was within 

43 7. the legislative power to make pro- 

The sum of $50 per month allow- vided the allowance was not greater 

ed by ch. 23 9 '11 to a judge of the than the expenses it was designed to 

supreme court who has changed his cover. McCoy v. Handlin, 3 5 S. D. 

actual residence to the state capital 48 7, 153 N. W. 3 61, L. R. A. 1915 

but whose legal residence is else- E 858, Ann. Cas. 191 7 A,' 1046. 



Art. V. § 31. THE CONSTITUTION 35 

§ 31. Xo judge of the supreme court or circuit courts shall 
act as attorney or counselor at law, nor shall any county judge 
act as an attorney or counselor at law in any case which is or 
may he brought into his court or which may be appealed there- 
from. 

As to other disqualifications of a public policy and existing only for 

circuit judge than the above, refer- the benefit of a party as a privilege 

ence must be had to the common law. may be withdrawn. State v. Ham, 

Objections to the trial of a case be- 2 4 S. D. 6 3 9. 124 N. W. 9 5 5, 22 

fore a judge not based on matters of Ann. Cas. 107 0. 

§ 32. There shall be a clerk of the circuit court in each or- 
ganized county, who shall also be clerk of the county court, and 
who shall be elected by the qualified electors of such county. The 
duties and compensation of said clerk shall be as provided by 
law and regulated by the rules of the court consistent with the 
provisions of law. 

Xo provision having been made isted at the time of the admission 

for a pre-admission election to fill of the state into the union which the 

the new office of clerk of the circuit county board could fill. Driscoll v. 

court, a vacancy in such office ex- Jones, 1 S. D. 8, 44 N. W. 726. 

§ 33. Until the legislature shall provide by law for fixing 
the terms of courts, the judges of the supreme, circuit and county 
courts respectively shall fix the terms thereof. 

Authority existed in the circuit the first regular term in the county, 
judge to order a term at any time In re Nelson, 19 S. D. 214, 10 2 N. 
prior to the date fixed by law for W. 88 5. 

§ 34. All laws relating to courts shall be general and of uni- 
form operation throughout the state, and the organization, juris- 
diction, power, proceedings and practice of all the courts of the 
same class or grade, so far as regulated by law, and the force and 
effect of the proceedings, judgments and decrees of such courts 
severally shall be uniform: Provided, however, that the legisla- 
ture may classify the county courts according to the population 
of the respective counties and fix the jurisdiction and salary of 
the judges thereof accordingly. 

The requirements of this section within the meaning of this section, 

have "been fully met if the statute Ch. 55 '97 limiting appeals from the 

has the same operation in all parts circuit to supreme court in actions 

of the state and applies in general for the recovery of money to judg- 

terms to all counties therein under ments of more than $75 violates the 

the same circumstances and condi- uniformity clause. McClain v. Wil- 

tions. § 10 ch. 81 '90 meets such liams, 11 S. D. 60, 75 N. W. 39, 43 

requirements. Minnehaha Co. v. L. R. A'. 289. 

Thorne, 6 S. D. 4 4 9, 61 N. W. 688. The proviso in § 1 ch. 110 '01 vio- 

Oircuit and county courts so far lated the uniformity clause of this 

as their jurisdiction is concurrent section and was void. Bennett v. 

ire courts of the same class or grade State, 16 S. D. 417, 93 N. W. 643. 



3 6 THE CONSTITUTION Art. V, § 34. 

The provisions of Huron special ment was for imprisonment or a fine 

charter preventing an appeal in exceeding $20, violate this section, 

cases arising under the city ordi- Mannie v. Hatfield, 2 2 S. D. 4 7 5, 118 

nances except where the case was N. W. 817. 
tried without a jury and the judg- 

§ 35. No judge of the supreme or circuit courts shall be 
elected to any other than a judicial office, or be eligible thereto, 
during the term for which he was elected such judge. All votes 
for either of them during such term for any elective office, ex- 
cept that of judge of the supreme court, circuit court or county 
court, given by the legislature or the people, shall be void. 

Secretary of State is not author- § 61, ch. 201, '11 are ministerial. If 

ized to refuse to certify the name of a the proposal petition is in due form 

candidate for Representative in Con- he has no alternative than to certify 

gross, to be voted upon at a primary the name of the candidate. State 

election, upon the ground that he ex rel. McNulty v. Glasner, 33 S. D. 

was judge of circuit court. The dut- 2 41, 145 N. W. 547. 
ies of the Secretary of State under 

§ 36. All judges or other officers of the supreme, circuit or 
county courts provided for in this article shall hold their offices 
until their successors respectively are elected or appointed and 
qualified. 

If the candidate for office who re- is not entitled to the office but the 
ceives the highest number of votes is incumbent holds over. Batterton v. 
ineligible the next highest candidate Fuller, 6 S. D. 2 5 7, 60 N. W. 10 71. 

§ 37. All officers provided for in this article shall respec- 
tively reside in the district, county, precinct, city or town for 
which they may be elected or appointed. Vacancies in the elec- 
tive offices provided for in this article shall be filled by appoint- 
ment until the next general election as follows: All judges of the 
supreme, circuit and county courts by the governor. All other 
judicial and other officers by the county board of the counties 
where the vacancy occurs; in cases of police magistrates by the 
municipality. 

No provision having been made McGee v. Gardner, 3 S. D. 553, 54 

for a pre-admission election to fill N. W. 60 6. 

the new office of clerk of the circuit Judge Bennett died after his elec- 

court, a vacancy in such office ex- tion in Nov. 1893 as judge of the su- 

isted at the time of the admission of preme court for the 6 year term be- 

the state into the union which the ginning on the first Tuesday after 

county board could fill. Driscoll v. the first Monday of January 1894, 

Jones, 1 S. D. 8, 44 N. W. 726. but before the beginning of that 

The words "until the next general term; held that a vacancy existed 

election" as applied to the office of to be filled by the Governor for the 

circuit judge mean until the next full 6 year term. In re Supreme 

general election at which a circuit Court Vacancy, 4 S. D. 5 3 2. 5 7 N. 

judge may be elected. State ex rel. W. 495. 



Art. V, § 



THE CONSTITUTION 



37 



Ch. 90 '05, in so far as it pur- 
ports to authorize the court, "when 
in the opinion of the court the ends 
of justice would be promoted there- 
by.*' to appoint a person to act tempo- 
rarily as states attorney and thereby 



supplant such officer is an attempt 
to authorize a court to temporarily 
fill a vacancy when there is no va- 
cancy. State v. Flavin, 3 5 S. D. 
530, 153 X. W. 296. 



§ 38. All process shall run in the name of the ''State of 
South Dakota." " All prosecutions shall be carried on in the name 
of and by authority of the -Stale of South Dakota." 



If the prosecution is in the name 
of the state and carried on under 
sanction of the proper officer of the 
state the constitutional provision is 
complied with and it is not neces- 
sary that the indictment state that 
it is found and presented by the au- 
thority of the state. State v. Thomp- 
son. 4 S. D. 5. 55 X. W. 725. 

See also In re Kirby, 10 S. D. 3 2 2. 
7 3 X. W. 92, 39 L. R. A. 8 56. 



An information is not "process" 
within the meaning of the first sent- 
ence. Under the second sentence it 
is not essential that an information 
contain a recital in terms that the 
prosecution is by authority of the 
state. State v. Carlisle, 30 S. D. 475, 
13 9 N. W. 127; writ of error to U. 
S. Supreme Court dismissed for 
want of jurisdiction, 238 U. S. 609, 
5 9 L. ed. 1487, 35 Sup. Ct. Rep. 663. 



ARTICLE VI. 

BILL OF RIGHTS 

i. All men are born equally free and independent, and 
have certain inherent rights, among which are those of enjoying 
and defending life and liberty, of acquiring and protecting pro- 
perty and the pursuit of happiness. To secure these rights gov- 
ernments are instituted among men. deriving their just powers 
from the consent of the governed. 



The right of "enjoying and de- 
fending life and liberty, of acquiring 
and protecting property, and the 
pursuit of happiness" includes the 
right to pursue any lawful calling, 
occupation or business and the right 
to choose the means of acquiring 
property and the pursuit of happi- 
ness not inconsistent with constitu- 
tional provisions or the rights of 
others. This right is infringed by 
that portion of ch. 2 7 '91 which pro- 
hibits any individual or firm from 
acting a banking business. 
State v. Scougal. 3 S. D. 5 5. 51 X. 
L5 L. R. A. 4 7 7, 44 Am. St. 
H 

City ordinance of Sioux Falls rel- 
ative to building permits, heid to 
violate the right of the citizen to use 
and improve his property as he may 



deem proper consistent with law, 
and that such ordinance exceeded 
the powers granted to the city and 
also required the payment of a fee. 
City of Sioux Falls v. Kirb^, 6 S. D 
62, 60 X. W. 156, 25 L. R. A. 621. 

C. C. P. § 73 7 relating to thresh- 
er's lien is not unconstitutional as 
impairing the right of contract with 
reference to a legitimate obifH'., 
Hahn v. Sleepy Eye Milling Co., 21 
S. D. 324, 112 X. W. 843. 

Ch. 131 '0 7 in no manner inter- 
feres with full freedom of contract 
except in so far as is necessary and 
proper to prevent wrong to the state 
and its subjects. State v. Central 
Lbr. Co.. 2 4 S. D. 13 6, 123 X. W. 
504, 42 L. R. A. (X. S.) 804. 

Since the legislature has the 
power to impose upon a county. 



THE CONSTITUTION 



Art. VI, § 2. 



township, or school district the reg- 
ulations prescribed by ch. 245 '0 9, 
even though such regulations might 
as to private parties be held uncon- 
stitutional, said chapter does not 
operate as a restriction of the con- 
stitutional right of contract. Han- 



delan v. Smee Sch. Dist., — S. D. 
— , 159 N. W. 888. 

Ch. 131 '0 7 does not unreasonably 
limit the liberty of people to make 
such bargains as they like. Central 
Lbr. Co. v. SJate of S. D., 226 U. 
S. 157, 57 D. ed. 164, 33 Sup. Ct. 
Rep. 66, affirming 24 S. D. 136. 



§ 2. No person shall be deprived of life, liberty or property 
without due process of law. 



Due process of law denned, People 
v. Sponsler, 1 Dak. 289, 46 N. W. 
459. 

The statute authorizing foreclo- 
sure by advertisement does not vio- 
late due process of law. It is a stat- 
ute to transfer the mortgagor's 
property in accordance with his will 
and not against it. Robinson v. Mc- 
Kinney, 4 Dak. 290, 29 N. W. 658, 

3 L. R. A. 355. 

County option law, ch. 70 '8 7 did 
not violate due process of law. Ter. 
ex rel, McMahon v. O'Connor, 5 Dak. 
397, 41 N.'W. 746. 

The citizen's right to pursue any 
lawful business is more than a mere 
right; it is property that cannot be 
taken away from him without due 
process of law. That part of bank- 
ing law, ch. 27 '91 which prohibits 
an individual or firm from transact- 
ing a banking business violates this 
section. State v. Scougal, 3 S. D. 
55, 51 N. W. 858, 15 L. R. A. 477, 

4 4 Am. St. Rep. 7 56. 

Obstruction by landlord of street 
in front of leased premises amounted 
to a taking of tenant's property for 
which tenant was entitled to com- 
pensation. Edmison v. Dowry, 3 S. 
D. 77, 52 N. W. 583, 17 L. R. A. 
275, 44 Am. St. Rep. 774. 

There can be no due process of 
law unless the party to be affected 
has his day in court, which might be 
denied by an answer of the judges 
of the supreme Court to an executive 
question without giving the party in- 
tended a day or voice in court. In 
re Construction of Constitution, 3 S. 
D. 548, 54 N. W. 650, 19 D. R. A. 
575. 



Ordinances and special charter of 
Yankton relative to notice of side- 
walk improvement and to the front 
foot rule of assessment held not to 
violate due process of law. Tripp v. 
City, of Yankton, 10 S. D. 516, 7 4 
N. W. 447. 

An assessment for an artesian 
well made under ch. 14 '8 9 is void 
in that no opportunity was provided 
for the property owner to be heard 
thereon. Turner v. Hand Co., 11 S. 
D. 348, 77 N. W. 589. 

§ 2149 Pol. Code does not violate 
due process of law since its effect is 
simply to place the consequences of 
the treasurer's failure to perform 
his duty upon that officer where 
they propertly belong. Harris v. 
Stearns, 20 S. D. 622, 108 N. W. 
247. 

C. C. P. § 73 7 relating to thresh- 
er's lien does not deprive the grain 
buyer of property without due proc- 
ess of law. Halm v. Sleepy Eye 
Milling Co., 21 S. D. 324, 112 N. 
W. 843. 

The provisions of ch. 194 '07 pur- 
porting to give the Board of Agricul- 
ture the sole right to determine who 
may sell nursery stock in this state 
violate due process of law. Ex 
parte Hawley, 22 S. D. 23, 115 N. 
W. 93, 15 L. R. A. (N. S.) 138. 

Provisions of special act of 1883 
incorporating Brookings wherein 
special assessments for sidewalks are 
made personal obligations of the lot 
owners held to violate this section. 
City of Brookings v. Natwick, 22 S. 
D. 322, 117 N. W. 376, 18 L. R. A. 
(N. S.) 1259, 133 Am. St. Rep. 
927, 17 Ann Cas. 1254. 



Art. VI, § 



THE CONSTITUTION 



39 



Ch. 131, 7 does not violate due 
process of law. State v. Cent. Lbr. 
Co.. 24 S. D. 136, 123 N. W. 504, 
4 2 L. R. A. (N. S.) SO 4; affirmed 
U. S. 157. 57 L. ed. 164, 33 
Sup. Ct. Rep. 66. 

Ch. 215 and 2 IS. '0 7. double dam- 
age laws are within the legislative 
power and not repugnant to this 
section. Jensen v. S. D. Cent. Ry. 
Co., 25 S. D. 506, 127 N. W. 650, 
35 L. R. A. (N. S.) 1015, 24 Ann. 
Cas. 700, (but see next citation.) 

Ch. 215. "0 7, double damage law 
in fire cases is within the police pow- 
er of the state. Polt v. C. M. & St. 
P. Ry. Co.. 2 6 S. D. 378, 128 N. W. 
4 7i'. but this decision was reversed 
in the Supreme Court of the U. S., 
the statute being held contrary to 
the rudiments of fair play. C. M. & 
St. P. Ry. Co. v. Polt, 232 U. S. 165. 
58 L. ed. 554, 34 Sup. Ct. Rep. 301. 

A similar decision in Kennedy v. 

C. M. & St. P. Ry. Co., 28 S. D. 94, 
1"2 N. W. 802, was reversed in the 

D. S. Supreme Court in a case with 
the reverse title, 232 U. S. 626, 58 
L. ed. 762. 34 Sup. Ct. Rep. 463. 

The entry of judgment upon a 
-complaint of one defendant 
against a co-defendant not served 
with the cross-complaint was a de- 
nial of due process of law. Phil- 
lips v. Branch Mint M. & M. Co.. 2 7 
S. U. 350, 131 N. W. 3 8. 

A published notice of time 
and place of hearing is suffi- 
cient to constitute due process of law. 
Bailey v. City of Sioux Falls, 28 S. 
D. 118. 132 N. W. 703. 

Ch. 4, '09 does not deprive a den- 
tist practicing before the act went 
into effect of any vested right. State 
v. Carlisle. 28 S. D. 169, 132 N. W. 
686. 32 Ann. Cas. 395. 

Service of summons outside the 
state upon an officer of a domestic 
corporation constitutes due process 
of law. Straub v. Lyman L. & I. 
Co. 30 S. D. 310. 138 N. W. 957, 
46 L. R. ,\ (N. S.) 941; 31 S. D. 
571, 141 N. YV. 979, 4 L. R. A. (N. 
B.) 944. 

The provisions of § 2811 Pol. Code 
do not deny due process of law. Mc- 



Mahon v. Mead, 30 S. D. 515, 139 
N. W. 122. 

The entry of a judment against a 
domestic corporation solely pursuant 
to personal service of the summons 
without the state is not a deprivation 
of due process of law whether such 
service was made before or after 
the taking effect of ch. 226, '11. 
Straub v. Lyman L. & I. Co., 31 S. 
D. 571, 141 N. W. 979, 46 L. R. A. 
(N. S.) 944. 

The court declined to determine 
whether Civ. Code § 533 violated the 
due process clause because of the 
meagerness of facts alleged and be- 
cause of lack of full argument. J. 
P. Schaller Co. v. Canistota Gr. Co., 
32 S. D. 15, 141 N. W. 993. 

§ 5 1, 10, 16 and 19, ch. 180, '07 
in so far as they interfere with vest- 
ed rights of riparian owners in run- 
ning streams or with owners of ar- 
tesian wells, violate this section. St. 
Germain Irr. D. Co. v. Hawthorne 
D. Co., 32 S. D. 260, 143 N. W. 124. 

Conten+ion that the garnishee law, 
ch. 156, '09 violates due process of 
law in that no provision is made for 
an undertaking — negatived. State 
ex rel. Bank of Herrick v. Circuit 
Court, 32 S. D. 573, 143 N. W. 892. 

§ 2196 Pol. Code providing for the 
sale of a whole tract for delinquent 
taxes and for competition among bid- 
ders upon the basis of the rate of, 
interest the certificate shall bear does 
not violate the due process clause of 
the constitu+ion. Ohlwine v. Bush- 
lell, 32 S. D. 426, 143 N. W. 362. 

Acts of a policeman pursuant to 
the order of a city commissioner in 
preventing a girl under 1 8 from at- 
tending a public dance, held to de- 
prive her of her liberty without due 
process of law, there being no law or 
city ordinance justifying such prohi- 
bition. Cullen v. Dickenson, 33 S. 
D. 27, 144 N. W. 656, 50 L. R. A. 
(N. S.) 987. 40 Ann. Cas. 115. 

If a tax deed issued without the 
filing of proof of service of notice of 
expiration of time of redemption pro- 
vided for by ch. 151, '09, be constru- 
ed as divesting title the effect would 



40 



THE CONSTITUTION 



Art. VI, § 2. 



be to violate the due process clause 
of this section. Cairn v. Ehrler, 33 
S. D. 536, 146 N. W. 694. 

Pol. Code § 2191 making personal 
taxes a first lien upon all personal 
property of the tax debtor does not 
violate any constitutional prohibition. 
Minneapolis T. M. Co. v. Roberts Co., 
34 S. D. 498, 149 N. W. 163, L. R. 
A. 1915 D 886. 

It is at least doubtful whether a 
city ordinance can make it an of- 
fense for one to be the owner of a 
building, designed to be used for the 
occupancy of human beings, which 
is without sewer connection. It is 
also doubtful if an ordinance is valid 
which makes a tenant guilty of an 
offense merely because he occupies 
a building which has no sewer con- 
nection. City of Deadwood v. Coe, 
34 S. D. 517, 149 N. W. 359. 

§ 495 Pol. Code, making a ware- 
house receipt conclusive evidence, as 
between bailor and bailee, that bail- 
or is the owner, does not violate the 
due process clause, nor does it in- 
vade the province of the judiciary. 
Street v. Farmers El. 'Co., 34 S. D. 
523, 149 N. W. 429. 

Where disqualification, if permit- 
ted to prevail, destroys the only tri- 
bunal in which relief may be sought, 
and thus effectually bars the door of 
justice, the disqualified judge is 
fyound to hear and decide the case, 
otherwise due process of law would 
be denied the suitor. McCoy v. 
Handlin, 35 S. D. 487, 153 N. W. 
361, L. R. A. 1915 E 858, Ann. 
Cas. 1917A, 1046. 

A construction of § 8 ch. 51 '0 9 
which would authorize the appoint- 
ment of a receiver without notice 
and without a showing of grounds 
would amount to a taking of prop- 
erty without due process of law. 
Cessna v. Otho D. & P. Co., 35 S. D. 
557, 153 N. W. 380. 

The extension of a street across a 
railroad right of way pursuant to 
condemnation proceedings and award 
of damages does not take the rail- 
road company's property without 
due process of law. Town of Emery 



v. C. M. & St. P. Ry. Co.. 35 S. D. 
583, 153 N. W. 655. 

Due process of law is not violated 
by § 8 ch. 312 '13 which makes the 
order of the Board of R. R. Com'rs 
absolute unless appealed from; nor 
by § 4 of said chapter which re- 
quires the trial in the circuit court 
upon appeal to be had solely on the 
record made before the Board; nor 
because upon appeal to the circuit 
court no provision is made for a 
jury trial since provision is made 
for a jury trial in an action to en- 
force the order. Turner Creamery 
Co. v. C. M. & St. P. Ry. Co., 3 6 S. 
D. 310, 154 N. W. 819. 

A county, being merely a govern- 
mental subdivision of the state, is 
not deprived of any of its constitu- 
tional rights by ch. 20 6 '13 which 
makes the state auditor the auditing 
officer of the accounts incurred by a 
county under said act. State v. 
Board of Co. Com'rs, 36 S. D. 606, 
156 N. W. 96. 

If the apportionment of property 
and indebtedness upon a division of 
a school district is a judicial act 
then § 69 ch. 13 5 '0 7 violates this 
section, but such apportionment is 
an administrative act, not a judicial 
one. Smithwick Sch. Dist. v. Linc- 
oln Sen. Dist., 3 7 S. D. 3 8, 156 N. 
W. 587. 

The inclusion in an assessment for 
local improvements; (a) of the ex- 
pense of filling streets by the volun- 
tary acts of property owners, and 
(b) of the expense of depositing in 
the streets surplus earth under a 
different grading contract affecting 
other streets, neither of which items 
was contemplated by the improve- 
ment proceeding, palpably violates 
the due process of law clause of the 
state and federal constitutions. 
Freese v. City of Pierre. 3 7 S. D. — . 
158 N. W. 1013. 

§ 510 C. C. P. which authorizes 
the taking of depositions at any 
time after service of process on de- 
fendant could not amount to the 
taking of defendant's property with- 
out due process of law. Allison v. 



Art. VI, § 2. 



THE CONSTITUTION 



41 



C. St. P. M. & O. R. Co., 3 7 S. D. 

. L58 N. W. 4 5 2. 

The connecting of telephone ex- 
changes in order to facilitate the 
transmission of messages is not an 
exercise of the power of eminent do- 
main but is analogous to the power 
exercised by a railroad commission 
in ordering connecting switches be- 
tween competing lines of railway. 
It is a mere regulation of a public 
service corporation either under an 
implied power resulting from the na- 
ture of the franchise enjoyed by the 
corporation or under the police pow- 
er of the state and therefore does 
not violate due process of law. City 
of Milbank v. Dak. Cent. Tel. Co., 
37 S. D. — . 159 N. W. 9 9. 

Due process of law applies to ad- 
ministrative and executive action by 
which one may be deprived of his 
property as well as to judicial ac- 
tion. § 4 5 ch. 22 4 '11 held to vio- 
late due process of law in that it does 
not provide for notice to be given to 
the original contract holder prior 
to the forfeiture of his contract. 
Caldwell v. Pierson — , S. D. — , 
159 N. W. 124. 

Since the legislature has the pow- 
er to impose upon a county, town- 
ship, or school district the regula- 
tions prescribed by ch. 2 45 '0 9, even 
though the act might as to private 
parties be invalid, said chapter does 
not violate due process of law. Han- 
delan v. Smee Sch. Dist.. — S. D. — . 
159 N. W. 88 S. 

The restriction of damages, caused 
by the construction of a drainage 
ditch, to damages to the lands trav- 
ersed by the ditch would violate due 
process of law. Re Yankton-Clay 
Creek Dr. Ditch. 3 8 S. D. — , 160 
X. W. 7 3 2. 

An assessment for taxation of an 
express company on the "unit basis" 
under ch. 4 '0 7 as amended does 
not take the company's property 
without due process of law, because 
such basis is authorized by the pro- 
visions of the constitution. Nor is 
the act as amended unconstitutional 
in that it does not give to the classes 
of corporations therein mentioned 



any right of appeal to the courts 
from the assesments made, such as 
is given to other tax "payers from 
county boards of equalization. Ewert 
v. Taylor, 38 S. D. — , 160 N. W. 
797. 

A county being a governmental 
agency its property is not taken 
without due process of law by legis- 
lative act of North Dakota validating 
void county contracts. Erskine v. 
Steele Co.. 8 7 Fed. 630; affirmed in 
Steele Co. v. Erskine, 9S Fed. 215, 
39 C. C. A. 173. 

North Dak. law in regard to pos- 
session of land and payment of taxes 
for ten years is not repugnant to due 
process of law. Schauble v. Schulz, 
137 F. 389, 69 C. C. A. 581. 

The collection of taxes from an 
express company under the provi- 
sions of §§16 and 17 ch. 6 4 '0 7 
would, in view of Art. 6 § 17 and 
Art. 11 § 2 as it stood prior to the 
amendment of 1912, constitute a 
taking of its property without due 
process of law. Wells-Fargo Co. v. 
Johnson, 214 Fed. 180, 130 C. C. A. 
528. L. R. A. 1916 C, 522. 

Since the legislature has the right 
to exclude foreign insurance compa- 
nies from doing business in this 
state, a foreign company is not en- 
titled to raise the question that ch. 
158 '0 3 violates due process of law. 
Hartford Fire Ins. Co. v. Perkins, 
125 Fed. 50 2; appeal dismissed, 196 
T. S. 643, 49 L. ed. 632, 25 Sup. 
Ct. Rep. 795. 

North Dakota drainage law is not 
obnoxious to the due process of law 
clause of the federal constitution. 
Soliah v. Heskin, 222 U. S. 5 2 2, 5 6 
L. ed. 294, 32 Sup. Ct. Rep. 103. 

Refusal of court to treat a decree 
of dismissal conclusive as to a point 
left open by the dismissal did not 
deprive defendant of the decree as 
property without due process of law. 
Swiff v. McPherson, 232 U. S. 51, 58 
L. ed. 49 9. 3 4 Sup. Ct. Rep. 2:',!). 
affirming 27 S. I). 296, 130 X. W 
768. 

The maximum intrastate rates fix- 
ed by X. D. laws, ch. 51 '07 for th" 
transportation of coal in carload lots 



42 



THE CONSTITUTION 



Art. VI, § 2. 



are confiscatory and deny the car- 
rier the due process of law guaran- 
teed by the- U. S. Const., 14th 
Amend,, where taking into account 
the entire traffic to which such rates 
are applied, they compel the carrier 
to transport the commodity for less 
than cost, or without substantial 
compensation in addition to cost, al- 
though the return -to the carrier 
from its entire intrastate operations 
may be adequate. N. P. Ry. Co. v. 
State of N. D. ex rel, McCue, 23 6 
U. S. 585, 59 L. ed. 735, 35 Sup. 
Ct. Rep. 429, reversing 26 N. D. 
438, 145 N. W. 135. 

N. D. law prohibiting sale of lard 
except in bulk or in packages of 
designated weights held not to deny 
due process of law. Armour & Co. 
v. State of N. D., 240 U. S. 510, 60 
L. ed. 771, 36 Sup. Ct. Rep. 440, af- 
firming 27 N. D. 177, 145 N. W. 
1033. 

An erroneous decision of a state 
court that the question of the can- 
cellation of a land contract is gov- 
erned by the law of the situs rather 
than that of the place of making 
and performance does not violate 



due process of law, nor raise a fed- 
eral question, where the state court 
had jurisdiction of the land and of 
the parties. Kryger v. Wilson, 242 
U. S. — , 61 L. ed. — , 37 Sup. Ct. 
Rep. 34, affirming 29 N. D. 28, 149 
N. W. 721. 

For various railroad rate cases 
where the question of confiscation 
was raised, see C. M. & St. P. Ry. 
Co. v. Tompkins, 90 Fed. 363; 176 
U. S. 167, 44 L. ed. 417, 20 Sup. Ct. 
Rep. 336. C. M. & St. P. Ry. Co. v. 
Smith, 110 Fed. 473. N. P. Ry. Co. 
v. Keyes, 91 Fed. 47. State ex rel. 
McCue v. N. P. Ry. Co., 19 N. D. 45, 
120 N. W. 869; 216 U. S. 579, 54 
L. ed. 624, 30 Sup. Ct. Rep. 423. 
State ex rel. McCue v. N. P. Ry. Co., 
26 N. D. 438, 145 N W. 135; 236 
U. S. 585, 59 L. ed. 735, 35 Sup. 
Ct. Rep. 429. Jewett Bros. & Jew- 
ett v. C. M. & St. P. Ry. Co.. 156 
Fed. 160. C. & N. W. Ry. Co. v. 
Smith, 210 Fed. 632. 

"Blue Sky" Law, ch. 275 '15 does 
not violate due process of law. Cald- 
well v S. F. Stock Yds. Co., 242 U. S. 
— , 61 L. ed. — , 37 Sup. Ct. Rep. 
224. 



§ 3. The right to worship God according to the dictates of 
conscience shall never be infringed. No person shall be denied 
any civil or political right, privilege or position on account of his 
religious opinions; but the liberty of conscience hereby secured 
shall not be so construed as to excuse licentiousness, the invasion 
of the rights of others, or justify practices inconsistent with the 
peace or safety of the state. 

No person shall be compelled to attend or support any minis- 
try or place of worship against his consent nor shall any prefer- 
ence be given by law to any religious establishment or mode of 
worship. No money or property of the state shall be given or ap- 
propriated for the benefit of any sectarian or religious society or 
institution. 



As to denial of religious liberty 
see Streich v. Board of Ed., 34 S. 
D. 169, 147 N. W. 779, L. R. A. 
1915A 632, Ann. Cas. 1917A, 760. 

The provisions of the last sen- 
tence are self executing and control 
all legislation upon the subject of 
appropriating money or other prop- 
erty for the benefit of or to any sec- 
tarian school. Hence a contract 



made in 1887 under § 1841 Comp. 
L. for the payment of tuition for 
certain pupils in a sectarian institu- 
tion terminated upon the adoption 
of the constitution and recovery 
could ' not thereafter be had upon 
such contract. Synod of Dakota v. 
State, 2 S. D. 366, 50 N. W. 632, 14 
L. R. A. 418. 



Art. VI, § * 



THE CONSTITUTION 



43 



§ 4. The right of petition, and of the people peaceably to as- 
semble to consult for the common good and make known their 
opinions, shall never be abridged. 

§ 5. Every person may freely speak, write and publish on 
all subjects, being responsible for the abuse of that right. In all 
trials for libel, both civil and criminal, the truth, when published 
with good motives and for justifiable ends, shall be a sufficient de- 
fense. The jury shall have the right to determine the fact and 
the law under the direction of the court. 



As to the province of the court 
and jury in determining questions of 
law in libel cases see Ter. v. Taylor, 
1 Dak. 479, 

It is certainly not an abuse of the 
right to freely publish on the subject 
of a candidate's fitness for public 
office for a newspaper to gives its 
readers who are interested in the 
candidate's election such information 
as it may acquire in good faith by 
the exercise of reasonable care al- 
though the publisher when sued for 
libel is unable to establish the truth 
of the publication, provided he can 
establish the fact that he acted with- 
out malice and for the sole purpose 
of enlightening the electors. Boucher 
v. Clark Pub. Co.. 14 S. D. 75 
X. W. 237. 

Where under the pleadings an al- 
leged libelous publication is pre- 
sumptively privileged the burden of 
proving express malice is on the 
plaintiff. . -Longstaff, 14 S. 

8, 84 N. W. 23 3. 

Whether or not a communication 
is privileged is a matter to be deter- 
mined by the jury. The court may 
direct the jury by stating to them 
constitutes a privileged com- 
munication. "If the defendant there- 
in good faith with proper mo- 
stated to the persons named 
that the plaintiff was an unfit person 
to be elected alderman for the rea- 
son that he had taken the cattle of 
th< defendant and the defendant 
jtly believed, and had reason to 
e, that his cattle had been stol- 
en by the plaintiff, he was fully jus- 
tified in making those statements." 
v. Ward. 14 S. D. 240, 85 N. 
m. St. Rep. 74R 



Certain instructions to the jury 
held to be reversible error notwith- 
standing the constitutional right of 
the jury in trials for libel to deter- 
mine, under the direction of the 
court, the law as well as the facts, 
for the reason there was nothing to 
refute the presumption that the jury 
accepted the erroneous charge as 
correct. Rood v. Dutcher, '23 S. D. 
70. 120 N. W. 772, 20 Ann. Cas. 480. 

Liberty of speech and of the press 
does not warrant an attorney either 
♦ before or after disbarment to prose- 
cute a campaign of villification of 
the courts or judges of the state ex- 
ceeding respectful, fair and candid 
criticism and descending to scandal- 
ous abuse. Liberty of the press does 
not authorize a newspaper to assail 
litigants during the progress of a 
trial, intimidate witnesses, dictate 
verdicts or judgments, or spread be- 
fore juries its opinion of the merits 
of cases which are on trial. In re 
Egan, 24 S. D. 301, 123 N. W. 478. 

Answer in a libel case held insuf- 
ficient to snow a privileged commu- 
nication but sufficient to authorize 
mitigation of damages. Williams v 
Black. 2 4 S. D. 501, 124 N. W. 728. 

I'nder this section the jury has 
the right to declare the meaning 
of an alleged libelous publication 
except in the cases where the lan- 
guage admits of only one construc- 
tion. Myers v. Longstaff, 14 S. D. 
98. 84 N. W. 233; Egan v. Dotson, 
35 S. D. 596, 153 N. W. 764; Egan 
.v Eastwood, 3 6 S. D. 4 2, 153 N. 
W. 917. 

Whenever a publication directly 
tends to impede, embarrass or ob- 
struct the courts in the administra- 



44 



THE CONSTITUTION 



Art. VI, § 5. 



tion of justice it is a contempt of 
court and subjects the responsible 
party to punishment therefor. State 
v. Kirby, 36 S. D. 188, 154 N. W. 
284. State v. Hippie Printing Co., 
36 S. D. 210, 154 N. W. 292. 

It is the settled law of this state 
that a charge made against a candi- 
date for office is privileged if the 
person making it believes in the 
truth of the charge and has probable 
ground for his belief, for which pur- 
pose hearsay suffices, regardless of 



the fact that the charge is false. 
Egan v. Dotson, 36 S. D. 459, 155 
N. W. 783, Ann. Cas. 1917A, 296. 

Injunctive relief will not lie to 
restrain publication of a libel or 
which aids any combination having 
for its purpose an unlawful injury 
to one's business; the remedy being 
an action at law for damages or by 
criminal proceeding. Montgomery 
Ward & Co. v. S. D. Ret. Merch., etc., 
150 P. 413. 



§ 6. The right of trial by jury shall remain inviolate and 
shall extend to all eases at law without regard to the amount in 
controversy, but the legislature may provide for a jury of less 
than twelve »in any court not a court of record and for the decision 
of civil cases by three fourths of the jury in any court. 



An action to enforce a mechanic's 
lien is not one in which either party 
may of right demand a jury trial. 
McCormack v. Phillips, 4 Dak. 506, 
34 N. W. 39. 

An action to enforce a mechanic's 
lien is equitable in character and 
the fact that a personal judgment 
may be entered does not affect or 
change the character of the action. 
Gull River Lbr. Co. v. Keefe, 6 Dak. 
160, 41 N. W. 743. 

The constitutional provision that 
"the right of trial by jury shall re- 
main inviolate" has no application 
to a summary proceeding for con- 
tempt of court. State v. Mitchell, 
3 S. D. 223, 52 N. W. 1052; writ 
of error dismissed 163 U. S. 696, 
41 L. ed. 306, 16 Sup. Ct. Rep. 
1204. 

Watertown special charter of 
1885 providing that trials for vio- 
lation of city ordinances shall be by 
the police justice without a jury ex- 
cept where an imprisonment exceed- 
ing 10 days is by the ordinance a 
part of the punishment violates 
this section if the action is civil. 
Belatti v. Pierce, 8 S. D. 456, 66 
N. W. 1088. 

The right of trial by jury was 
not waived where both parties mov- 
ed for a directed verdict and the 
court discharged the jury and ma- 
terial evidence was afterwards in- 



troduced. Albien v. Smith, 19 S. D. 
421, 103 N. W. 655. 

A petition for letters of adminis- 
tration is not a "case at law." No 
constitutional right was invaded by 
^a denial of a jury trial. In re Mc- 
Clellan's Estate, 20 S. D. 498, 107 
N. W. 681. 

An action to cancel a deed be- 
cause of false and fraudulent repre- 
sentations invokes the equity powers 
of the court and defendants have no 
legal right to demand a jury trial. 
Thomas v. Ryan, 24 S. D. 71, 123 N. 
W. 68. 

Where plaintiff, knowing that 
equitable relief is impossible by rea- 
son of defendant's Avant of title, 
joins in his complaint for damages 
for breach of contract a claim for 
specific performance of the contract 
it is error to refuse defendant a 
trial by jury. Leisch v. Baer. 2 4 
S. D. 184, 123 N. W. 719. 

Under this section and § 716 Pol. 
Code, it is reversible error for a sher- 
iff to participate in drawing a jury, 
he being the real party plaintiff, a 
challenge to the array having been 
made. Jones v. Woodworth, 24 S. 
D. 583, 124 N. W. S44, 22 Ann. 
Cas. 1134. 

The right of trial by jury as it 
existed at common law alone is pre- 
served by this section. Complaint in 
action to determine adverse claims 



Art. VI. 



THE CONSTITUTION 



45 



examined and held to call solely for 
equitable relief. Grigsby v. Larson, 
24 S. D. 628, 124 N. W. 856. 

An action to quiet title and cancel 

deed, where possession is not 

demanded by either party, is purely 

equitable and a jury trial is not a 

matter of right. Peters v. Lohr, 24 

605, 124 N. W. 853. 

Code Civ. Pro. § 36 does not vio- 
late this section. Kennev v. McKen. 
zie. 2 5 S. D. 4 8 5. 127 N. W. 597. 4!* 
L. R. A. (N. S.) 7S2. 

On appeal to the circuit court un- 
der § 359 Prob. Code, a trial by jury 
is not a matter of right and said 
section of the Prob. Code does not 
violate this section of the constitu- 
tion. Shaw v. Shaw, 28 S. D. 221, 
133 N. W. 292, 32 Ann. Cas. 5 5 4. 

In an action on tl.e chancery side 
of the court a jurj trial is not a 
matter of right and the verdict is 
merely advisory. Independent find- 
ings of fact and conclusions of law 
as a basis for the judgment are re- 
quisite. Byrne v. McKeachie, 29 S. 
O. 476. 137 N. W. 343. 

The right of trial by jury in an 
action ^t law held to have been waiv- 
ed by accepting the terms of an or- 
der for continuance. Subelia v. Jel- 
gerhuis. 3 2 S. D. 648, 144 N. W. 

An action for reformation and en- 
forcement of a contract is equitable 
in nature and not one in which the 
parties are entitled to a jury trial as 
of right. Castle v. Gleason. 3 5 S. D. 
L50 N. W. 895. 

Even if the case were a jury case 
defendant waived his right to a jury 
trial when he did not timely except 



to the ruling of the court placing 
the same on the court calendar and 
when, without such exception, he al- 
lowed the jury to be discharged for 
the term. Owens v. Reed. 3 6 S. D. 
15 3 N. W. 10 93. 
The right of trial by jury in an 
action to enforce an order of the 
Board of R. R. Com'rs requiring 
the payment of money given by ch. 
26 2 '15 sufficiently preserves the 
right of jury trial although no pro- 
vision is made for trial by jury on 
appeal from the order of the Board 
under ^19 ch. 207 '11. Turner 
Creamery Co. v. C. M. & St. P. Ry. 
Co.. 36 S. D. 310. 154 N. W. 819. 

The action of a trial court in sub- 
mitting special findings to a jury 
and in making findings of fact in a 
case noticed for trial as a jury case 
cannot be reviewed by the appellate 
court where no objection was inter- 
posed to the action of the trial court. 
Windedahl v. Harris. 3 7 S. D. 7, 156 
N. W 48 9. 

An action to foreclose a chattel 
mortgage is triable without a jury 
and although tried before a jury the 
verdict is merelv advisory. Massey 
v. Fralish, 3 7 S. B. — . 156 N. W. 
791. 

An action seeking rescission and 
cancellation of a contract is on the 
equity side of the court, but upon a 
counter-claim raising issues in an 
action at law the defendant was en- 
titled to a jury trial. Neither party 
moved for a separation of the issues 
therefore no error could be based on 
the fact of such non-separation. 
Purcell v. Int. Harv. Co., — S. D. 
— , 159 N. W. 47. 



7. In all criminal prosecutions the accused shall have the 
right to defend in person and by counsel; to demand the nature 
and cause of the accusation against him; to have a copy thereof; 
to meet the witnesses against him face to face; to have compul- 
sory process served for obtaining witnesses in his behalf, and to 
a speedy public trial by an impartial jury of the county or dis- 
trict in which the offense is alleged to have been committed. 



46 



THE CONSTITUTION 



Art. VI, § 7. 



The object of the indictment is 
not only to enable accused to make 
his defense and avail himself of con- 
viction or acquittal against a fur- 
ther prosecution for the same of- 
fense but it is also to inform the 
court of the facts alleged so that 
it may decide whether they are suf- 
ficient in law to support a conviction 
if one should be had. McCall v. U. 
S. 1 Dak. 320, 46, N. W. 608. 

While contempt proceedings are 
criminal in their nature they are not 
of themselves criminal actions or 
prosecutions, accordingly the con- 
stitutional right "to meet the wit- 
nesses against him face to face" 
which exists in all criminal prosecu- 
tions was not violated by submitting 
evidence on behalf of the state by 
affidavit in a contempt proceeding. 
State v. Mitchell, 3 S. D. 223, 52 N. 
W. 10 52; writ of . error dismissed, 
.163 U. S. 696, 41 L. ed. 306, 16 
Sup. Ct. Rep. 1204. 

An indictment which charged that 
defendant "did wilfully, wrongfully 
and unlawfully sell intoxicating liq- 
uors to be drank as a beverage" was 
held insuffcient in that it did not 
give the name of the person, if 
known, to whom the liquor was sold, 
and if unknown that it did not give 
some other description of the offense 
sufficient to identify it. State v. 
Burchard, 4 S. D. 548, 57 N. W. 491. 

Watertown special charter of 18 8 5 
providing that trials for violation of 
city ordinances shall be by the police 
justice without a jury except where 
an imprisonment exceeding 10 days 
is by the ordinance a part of the 
punishment violates this section if 
the action is criminal. Belatti v. 
Pierce, 8 S. D. 456, 66 N. W. 1088. 

To hold that a court in any stage 
of a criminal prosecution may try 
and convict a defendant without a 
semblance of such an accusation as 
the law expressly requires would es- 
tablish a precedent unsanctioned by 
statute and at variance with this sec- 
tion of the constitution. State v. 
Walker, 9 S. D. 438, 69 N. W. 586. 

A statement of ''the acts constitu- 
ting the offense", not the conclusion 



of the pleader as to what crime such 
acts constitute, is required in an in- 
dictment. Facts are demanded, not 
conclusions of law, or obsolete, tech- 
nical phrases. State ex rel. Kotilinic 
v. Swenson, 18 S. D. 196/99 N. W. 
1114. 

So far as the statute authorizes 
criminal actions to be tried, without 
the consent of the accused, out of 
the county or district (judicial sub- 
division) in which the offense is al- 
leged to have been committed it 
plainly violates the constitution. In 
re Nelson, 19 S. D. 214. 102 N. W. 
885. 

The constitutional right of the ac- 
cused to meet the witnesses against 
him face to face and to have com- 
pulsory process served for obtaining 
witnesses in his behalf does not ap- 
. ply to a preliminary examination. 
Farnham v. Coleman. 19 S. D. 3 42, 
103 N. W. 161, 1 L. R. A. (N. S.) 
1135, 117 Am. St. Rep. 944. 9 Ann. 
Cas. 314. 

Except as statutes may otherwise 
require, the rule should be that a 
demand for trial, resistance to post- 
ponement, or some other effort to 
secure a speedy trial on the part 
of the accused should be shown to 
entitle him to a discharge on th3 
ground of delay. State v. Lara- 
phere, 20 S. D. 98. 104 N. W. 1308. 

The provision for the right of ac- 
cused to a speedy public trial must 
be given such a construction that 
the officers representing the state 
shall be allowed reasonable time in 
which to secure the attendance of 
witnesses. State v. Pratt, 20 S. D. 
440, 107 N. W. 538, 11 Ann. Cas. 
1049. 

There is a fatal variance be- 
tween an information charging a 
joint sale of intoxicating liquors to 
six persons and proof of a sale to 
but one of such persons. State v. 
Williams, 20 S. D. 492. 107 N. W. 
830. 

The principal office of an informa- 
tion is to inform accused of the na- 
ture and cause of the accusation 
against him. The required object 
cannot be better attained than by 



Art. VI. § 7. 



THE CONSTITUTION 



47 



stating the acts constituting the al- 
leged offense "in ordinary and con- 
cise language without repetition and 
in such a manner as to enable a 
person of common understanding to 
know what, is intended." State v. 
Flute, 20 S. D. 562. 108 N. W. 248. 

The right to have compulsory 
process served for obtaining wit- 
nesses entitles accused to the . pres- 
ence of his witnesses if procurable 
within the state and this necessarily 
includes adequate means to secure 
their presence. State v. Wilcox, 21 
S. D. 532. 114 X. W. 687. 

Notice of the nature and cause of 
the accusation does not include no- 
tice of the nature of the evidence 
which will be produced further than 
the same may be indicated by the al- 
legations of the information or in- 
dictment, nor does a fair and im- 
partial trial require that accused 
shall be placed in a more favorable 
position than that occupied by the 
government. One accused of crime 
is not entitled as a matter of right 
to previous notice of all witnesses 
who may be called by the state. 
State v. Matejousky, 22 S. D. 30, 
115 X. W. 96. 

Code Cr. Pro. § 303 providing that 
when a challenge to the regular panel 
is allowed the court must discharge 
the jury and another may be sum- 
moned for the same term forthwith 
from the body of the county or sub- 
division or the judge may order a 
jury to be drawn and summoned in 
the regular manner, does not con- 
flict with this section. State v. Hayes 
23 S. D. 596, 122 N. W. 652. 

This section not violated by ad- 
mitting at the trial the testimony of 
a witness given at the preliminary 
hearing, where witness has left the 
state, since defendant had the oppor- 
tunity to cross-examine witness at 
the preliminary hearing. State v. 
Heffernan, 24 S. D. 1, 123 N. W. 
87, 25 L. R. A. (N. S.) 876, 140 Am. 
St. Rep. 764, reversing State v. Hef- 
fornan, 22 S. D. 513. 

One may not lawfully be convicted 
of a crime not embraced in the ac- 
cusation and as but one crime can 



be charged in the same accusation 
there was but one act of sexual in- 
tercourse of which defendant could 
lawfully be convicted. State v. Riggs 
25 S. D. 275, 126 N. W. 509. 

Whether the reception in evidence 
of the certificate mentioned in § 3, 
ch. 4, '09 violates the right of defend 
ant "to meet the witnesses against 
him face to face" not determined. 
State v. 'Carlisle, 30 S. D. 475, 139 N. 
W. 127. Writ of error to U. S. Su- 
preme Court dismissed for want of 
jurisdiction, 238 U. S. 609, 59 L. ed. 
1487, 35 Sup. Ct. Rep. 663. 

Indictment examined and held not 
to conflict with the right of defend- 
ant to demand the nature and cause 
of the accusation against him. State 
v. Stewart, 30 S. D. 585, 139 N. W. 
371. 

Whether an information drawn 
solely in accordance with the pro- 
visions of § 221 Code Cr. Pro., as 
amended by ch. 2 42 '13 would in- 
form defendant of the nature and 
cause of the accusation against him 
was not determined, since the infor- 
mation designated the offense in 
such a manner as to enable a per- 
son of common understanding to 
know what was intended, in compli- 
ance with sub. 6 § 229 Code Cr. 
Pro., as amended by said ch. 242 '13 
and was therefore sufficient. State 
v. Morse, 35 S. D. 18, 150 N. W. 
293. 

When upon appeal from a judg- 
ment of conviction in a criminal case 
the Attorney General files no brief 
but does file a statement that he is 
convinced that the complaint upon 
which defendant was convicted did 
not state facts sufficient to consti- 
tute a public offense the judgment 
will be reversed. State v. Ward, 3 6 
S. D. 415, 155 N. W. 185. 

The right of trial by an impartial 
jury held violated by the refusal of 
the trial court to grant a change of 
venue, in view of the inflamed pub- 
lic sentiment of the county. State 
v. Perkins, 36 S. D. 579, 156 N. W. 
73. 

Under an information charging 
defendant with shooting "B" with a 



THE CONSTITUTION 






Art. VI, § 7 






rifle he may not be convicted as an 
accessory to the shooting of "B" by 
"C" with a revolver. The rule that 
accused has the right to demand the 
nature and cause of the accusation 
against him does not require that 
the evidence as to the manner or 
means of the act be pleaded but it 
does require that the specific act 
relied upon as the cause of the ac- 
cusation shall be the act to be 
pleaded and proved, and not an- 
other, and to justify a conviction 
the verdict must find -the accused 
guilty of that act and not another. 
State v. Stewart, 3 7 S. D. — , 157 
N. W. 1046. 

An information, drawn under 
§ 645 Pen. Code, considered and 
held to advise accused of the nature 
and- cause of the accusation against 
him and to be sufficient to enable 
him to prepare his defense as well 
as to enable him to plead conviction 
or acquittal in bar of another prose- 
cution upon the same transaction. 

State v. Van Ruschen, 38 S. D , 

160 N. W. 811. 

Analagous to our provision re- 
quring a trial by jury of the county 
or district in which the offense is al- 
leged to have been committed the 
federal constitution requires a trial 
by jury of the state and district, 
etc.; held that a direction by the 
court in the venire for a grand jury 
that it should be summoned from a 
certain part of the district was not 
in conflict with such constitutional 
requirement. U. S. v. Ayres, 46 
Fed. 651. 

Federal statute that a judgment 
of conviction of a person for steal- 
ing postage stamps shall be conclu- 
sive evidence that they are stolen 
property in an action against one 
for receiving such property knowing 
it to be stolen, held to violate the 
constitutional provision that the ac- 
cused shall be confronted with the 
witnesses against him, but the in- 
dictment was not defective because 



it did not show from whom the ac- 
cused received the stamps. Kirby v. 
U. S.. 174 U.S. 47, 43 L. ed. 890, 
19 Sup. Ct. Rep. 5 7 4. 

If §§ 3 and 4 ch. 131 '07 provide 
penalties for crime they violate the 
constitution and are absolutely void 
for they deny the right of trial by 
jury- State v. Central Lbr. Co., 24 
S. D. 136. 123 N. W. 504, 42 L. R. 
A. (N. S.) 804; affirmed 226 U. S. 
157, 57 L. ed. 164, 33 Sup. Ct. Rep. 
66. 

An indictment for depositing in 
the U. S. post office an unmailable 
letter which omits the contents of 
the letter but states that it is of 
such an indecent character as to be 
unfit to be spread upon the court 
records does not contravene the 
right of the accused to be advised of 
the nature and cause of the accu- 
sation against him. The accused 
has the right to demand a bill of 
particulars thereof. Bartell v. U. 
S. 227 U. S. 427, 57 L. ed. 583, 33 
Sup. Ct Rep. 383; Tubbs v. U. S., 
105 Fed. 59, 44 C. C. A. 357. 

The right of accused to demand 
the nature and cause of the accusa- 
tion against him does not require 
the information to disclose the 
evidentiary means the state will 
use to establish defendant's guilt. 
Under an information charging de- 
fendant with the offense of engaging 
in the business of selling intoxicat- 
ing liquors without a license the 
state may prove sales by agents or 
employees. The remedy of defend- 
ant who feels that he is entitled to 
further facts than those stated in 
the information is a request for a 
bill of particulars. State v. Otto, 3 8 
S. D. — , 161 N. W. 342. 

The right to be informed of the 
nature and cause of the accusation 
is not denied by an information 
drawn under § 6 57 Pen. Code which 
does not name the insurer. State v 
Korth. 38 S. D. — , 162 N. W. 144. 



§ 8. All persons shall be bailable by sufficient sureties, ex- 
cept for capital offenses when proof is evident or presumption 



*. 



Art. V 



THE CONSTITUTION 



49 



great. The privilege of the writ of habeas corpus shall not be 
suspended unless, when in ease of rebellion or invasion, the pub- 
lie safety may require it. 



The granting of bail in capital 
not a matter of discretion, 
notwithstanding Code Cr. Pro. 

The only matter to determine is 
whether or not the proof is evident 
or presumption great. In the one 

§ 9. No person shall be co 
•vide nee against himself or 
e offense. 
sndant was not entitled to 
on the validity of § 13 ch. 101 
Inch provided that "he may be 
to make answer to inter- 
bt cause it was not 
claimed that his rights were so vio- 
v. Mitchell, 3 S. D. 
x W. 1052; writ of error 
ssed 163 U. S. 6 96, 41 L. ed. 
16 Sup. Ct. Rep. 1204. 
re defendant has not had a 
legal trial jeopardy has not attach- 
^n though the error consisted 
neous instructions to 
the jury. State v. Reddington, 8 
N. W. 465. 
defendant was tried and 
ted of rape of a female under 
sars of age and the court ar- 
judgment for that the 
prosecuting witness was shown to 
be over the age of 16 years at the 
time the offense was committed and 
a new information was filed charg- 
ing the same offense at an earlier 
to which the defendant inter- 
posed the plea of former jeopardy, 
such plea should have been sus- 
tained. State v. Adams, 11 S. D. 
431. 78 N W. 353. 

Former jeopardy does not arise 
where defendant was either convict- 
ed or acquitted of the charge of as- 
sault with a deadly weapon with in- 
tent to rob and afterwards tried 
for the offense of robbery even 
though they relate to the same 
taction. State v. Caddy. 15 S. 
D. 1' 7, 91 Am. St. 

Rep. 

Whenever the testimony sought to 



case bail is forbidden in the other 
it is a matter of right. The burden 
of showing that proof is evident or 
presumption great is upon the state. 
State v. Kauffman, 2 S. D. 620, 
108 N W. 246. 

mpelled in any criminal case to 
be twice put in jeopardy for the 

be elicited may tend to subject a 
witness to criminal liability he has 
the constitutional right to refuse to 
answer upon that ground. As this 
privilege is personal the witness 
alone can claim it. State v. Mun- 
geon, 20 S. D. 612, 108 N. W. 552. 

The admission in evidence of a 
letter written by accused while in 
jail addressed to his father and 
mother and delivered unsealed to 
the sheriff for mailing did not vio- 
late the clause that no person shall 
be compelled in any criminal case 
to give evidence against himself. 
State v. Vey, 21 S. D. 612, 114 N. 
W. 719. 

Assuming that a search warrant 
was illegally issued it does not fol- 
low that the introduction in evi- • 
dence of the articles obtained by 
means of such warrant violated the 
clause against giving evidence 
against oneself. State v. Madison, 
23 S. D. 584, 122 N. W. 647. 

Where on the same expedition sev- 
eral distinct larcenous takings of 
property are charged in an informa- 
tion an acquittal of one taking is not 
a bar to prosecution for another and 
defendant was not twice put in jeop- 
ardy for the same offense. State v. 
Barnes, 26 S. D. 268, 128 N. W. 
170. 

The inhibition against putting a 
defendant twice in jeopardy does not 
preclude the legislature from author- 
izing the review of criminal actions 
for the purpose of having questions 
of law determined. State v. Stunkard, 
28 S. D. 311. 133 N. W. 253. 



50 



THE CONSTITUTION 



Art. VI, § 10. 



§ 10. No person shall be held for a criminal offense unless 
on the presentment or indictment of a grand jury, or informa- 
tion of the public prosecutor, except in cases of impeachment, in 
cases cognizable by county courts, by justices of the peace, and 
in cases arising in the army and navy, or in the militia when in 
actual service in time of war or public danger: Provided, that 
the grand jury may be modified or abolished by law. 



Ch. 2 7 '72-3 giving justice courts 
exclusive jurisdiction where the fine 
did not exceed $100 etc. held to 
violate the U. S. constitution. Peo- 
ple v. Sponsler, 1 Dak. 289, 46 N. 
W. 45 9. But it would seem that 
the exception in the above section 
together with Art. V § 2 2 would 
render this decision inapplicable 
since statehood. 

Ch. 64 '9 5 is safely within the 
proviso of the above section. State 
v. Ayres, 8 S. D. 517, 67 N. W. 611. 

If §§ 3 and 4 ch. 131 '07 pro- 
vide penalties for crime they vio- 
late the constitution and deny the 
right to a trial on an indictment 
or information. State v. Central 



Lbr. Co., 24 S. D. 136, 123 N. W. 
504, 42 L. R. A. (N. S.) 804; af- 
firmed 226 U. S. 157, 57 L. ed. 164, 
33 Sup. Ct. Rep. 66. 

The states attorney, and in cer- 
tain cases the attorney general, is 
the public prosecutor. An informa- 
tion signed by an appointee of the 
circuit court merely because "in the 
opinion of the court the ends of 
justice would be promoted thereby" 
pursuant to ch. 90 '05 when the 
states attorney was neither absent 
nor unable to attend to his duties 
nor adversely interested, nor dis- 
qualified, is a nullity. State v. 
Flavin, 35 S. D. 530, 153 N. W. 296. 



§ dl. The right of the people to be secure in their persons, 
houses, papers and effects, against unreasonable searches and 
seizures shall not be violated, and no warrant shall issue but up- 
on probable cause supported by affidavit, particularly describing 
the place to be searched and the person or thing to be seized. 



Whether a search of the dwelling 
of accused under a warrant issued 
under § 8, ch. 173, '07 was in vio- 
lation of this section, where liquors 
were found and it was shown that 
sales thereof were made therein — 
not determined. State v. Madison 
23 S. D. 584, 122 N. W. 647. 

The provisions of § 477 C. C. P. 
do not violate this section of the 
constitution. McGeary v. Brown, 
23 S. D. 573, 122 N. W. 605. 

If § § 3 and 4 ch. 131 '07 provide 
penalties for crime they violate the 
constitution. State v. Central Lbr. 



Co., 24 S. D. 136, 123 N. W. 504, 
42 L. R. A. (N. S.) 804; affirmed 
226 U. S. 157, 57 L. ed. 164, 33 
Sup. Ct. Rep. 66. 

An officer, after making an ar- 
rest for selling intoxicating liquor 
contrary to law without actually 
seizing -the liquors, may not there- 
after return to and forcibly enter 
the place without a search warrant 
even though he has actual know- 
ledge that such liquors are in the 
place. Gamble v. Keyes. 35 S. D. 
644, 153 N. W. 888. 



§ 12. No ex post facto law, or law impairing the obligation 
of contracts or making any irrevocable grant of privilege, fran- 
chise or immunity, shall be passed. 



Art. VI. § i: 



THE CONSTITUTION 



51 



§ 1 ch. 84 '83 amending mechan- 
ic's lien law affected the remedy 
merely — not vested rights. St. 
Croix Lbr. Co. v. Mitchell, 6 Dak. 
215, 50 X. W. 624. 

Bastardy Act, ch. 24 '93, created 
no new liability but only a new 
method of enforcing defendant's lia- 
bility. Ordinarily the mere change 
in the method of procedure does 
not constitute such a change in the 
law as to make it ex post facto, but 
the bastardy act is not a criminal 
statute. It is a special proceeding, 
criminal in form, to compel the 
father to support his illegitimate 
child. State y. Bunker, 7 S. D. 639, 
6 5 X. W. 3 3. 

Ch. 89 '95 exempting $5000 life 
insurance from the payment of 
debts of a deceased person held to 
impair the obligation of contracts 
in so far as it purported to apply to 
antecedent contracts. Skinner v. 
Holt, 9 S. D. 427, 69 N. W. 595, 62 
Am. St. Rep. 8 78. See also note 
of this case under Art. 3 § 1 as to 
violating the conclusiveness of a 
judgment. 

The proviso in sub. 5 § 3 ch. 41 
'99, limiting the county tax levy 
for all purposes to eight mills, in 
its natural and reasonable opera- 
tion impairs the obligation" of con- 
tracts. F. E. & M. V. Ry. Co. v. 
Pennington Co. 20 S. D. 270, 105 
X. W. 9 2 9. 

The right conferred upon a tele- 
phone company by the state to con- 
struct its lines includes the right 
to enter a city with the consent of 
the local authorities, but such right 
is subject to legislative control. Xo 
city can impose any conditions or 
enforce any regulations other than 
those authorized by the legislature. 
Missouri River Tel. Co. v. City of 
Mitchell, 2 2 S. D. 191, 116 X W 
97. 

The prohibition of the impairment 
of the obligations of contracts pre- 
vents the legislature from limiting 
sinking fund levies so as to abrogate 
any law or ordinance providing for 
the payment of the interest or prin- 
cipal of the bonded debt of a coun- 



ty. F. E. & M. V. R. Co. v. County 
of Pennington, 22 S. D. 202, 116 N. 
W. 75. 

§ 2 ch. 131 '0 7 declares the 
penal consequences of the trans- 
gression and it would not be com- 
petent for the legislature to add 
another penalty and enforce each 
by a separate action. State v. Central 
Lbr. Co. 24 S. D. 136, 123 N. W. 
504, 42 L. R. A. (X. S.) 804; af- 
firmed 226 U. S. 157, 57 L. ed. 164, 
33 Sup. Ct. Rep. 6 6. 

§ 5, oh. 102, '0 9, providing for the 
enforcement of drainage assessments 
in the manner provided for the en- 
forcement of taxes has no application 
to certificates of assessment issued 
und'er the prior law where the reme- 
dy was by foreclosure, such remedy 
being a vested right; nor can the 
legislature enact a law which rend- 
ers, more difficult or uncertain the 
enforcement of a right under an 
existing lien. Lee v. Clark Imp. Co., 
31 S. D. 581, 141 N. W. 986. 

Ch. 84, '91 did not as to mort- 
gages theretofore executed impair 
the obligation of the contract since 
it merely changed the person who 
could act as auctioneer on the fore- 
closure sale. Brown v. Hall, 32 S. 
D. 225, 142 N. W. 854. 

Ch. 78, '09 requiring purchaser at 
foreclosure sale to give notice of ex- 
piration of time of redemption is not 
invalid as an impairment of vested 
legal rights or as an impairment of 
the obligation of a contract where the 
purchaser may still secure his deed 
at the same time as though that act 
had not gone into effect. Clark Imp. 
Co. v. Wadden, 34 S. D. 550, 149 X. 
W. 424, L. R. A. 1915 C 414. 

The extension of a street across a 
railroad right of way pursuant to 
condemnation proceedings and 
award of damages does not amount 
to an impairment of the obligation 
of contract. Town of Emery v. C. 
M. & St. P. Ry. Co., 3 5 S. D. 5 83. 
15.3 X. W. 65 5. 

A license to sell intoxicating 
liquors is simply a permit and not 
a contract and where the statute au- 
thorizes a revocation of the license 



THE CONSTITUTION 



Art. VI, § 12. 



for "violation" of law as distin- 
guished from a "conviction" for 
such violation a judicial determina- 
tion of law violation was not a 
necessary prerequisite to the revo- 
cation of the license. Murphy 



Liquor Co. 



Medbery, 



S. D. 



589, 153 N. W. 654. 

North Dakota amendments to me- 
chanic's lien law, Dak. Comp. L. 
§§ 5468-5485 enlarging the remedy 
do not impair the obligation of a 
contract with a prior mortgagee. 
Red River Val. N.. B. v. Craig, 181 
U. S. 548, 45 L. ed. 994, 21 Sup. 
Ct. Rep. 703. 

Since the legislature has the right 
to exclude foreign insurance com- 
panies from doing business in this 
state a foreign company is not en- 
titled to raise the question that ch. 
158 '03 impairs the obligation of 
contracts. Hartford Fire Ins. Co. 
v. Perkins, 125 Fed. 50 2. Appeal 
dismissed, 196 U. S. 643, 49 L. ed. 
632, 25 Sup. Ct. Rep. 795. 

T'oncerning the rights of a tele- 
phone company the U. S. Circuit 
Court of Appeals said: "Under sec- 
tion 12 of Art. 6 of the State con- 
stitution its rights are at all times 
subject to legislative action and 
there are possibly other limita- 



tions." City of Vermillion v. N. W. 
Tel. Exch. Co. 189 Fed. 289, 111 
C. C. A, 21. 

Neither a change in the law as 
to place and period of incarcera- 
tion, prior to execution of death 
penalty, of one convicted of murder 
nor a change in the place of execu- 
tion made after conviction, renders 
the statute ex post facto since the 
changes did not alter the situation 
to the material disadvantage of the 
criminal. Rooney v. State, 196 U. 
S. 319, 49 L. ed. 494, 25 Sup. Ct. 
Rep 264, affirming 12 N. D. 144, 
95 N. W. 513. 

Refusal of court to. treat a decree 
of dismissal conclusive as to a point 
left open by the dismissal did not 
impair the obligation of the decree 
as a contract. Swift v. McPherson, 
232 U. S. 51, 58 L. ed. 499, 34 
Supt. Ct. Rep. 239; affirming 27 
S. D. 296, 130 N. W. 768. 

Impairment of contract by judi- 
cial decision does not raise a feder- 
al question which can be reviewed 
by the federal supreme court on 
writ of error to a state court. Kry- 
ger v. Wilson, 2 42 U. S. — , 61 
L. ed. — .37 Sup. Ct. Rep. 34, af- 
firming 29 N. D. -28, 149 N. W. 721. 



§ 13. Private property shall not be taken for public use, or 
damaged, without just compensation as determined by a jury, 
which shall be paid as soon as it can be ascertained, and before 
possession is taken. No benefit which may accrue to the owner 
as the result of an improvement made by any private corporation 
shall be considered in fixing the compensation for property taken 
or damaged. The fee of land taken for railroad tracks or other 
highways shall remain in such owners, subject to the use for 
which it is taken. 



The principle of the common 
law that an owner of property abut- 
ting upon a highway was presumed 
to be the owner to the center of the 
street subject to the easement of 
the public has been adopted in this 
section of the constitution. Edmi- 
son v. Lowry, 3 S. D. 77, 52 N. W. 
583, 17 L. R. A. 275, 44 Am. St. 
Rep. 774. 



The right of a jury trial upon 
the question of damages is secured 
by providing for an appeal to the 
proper court in which a jury trial 
can be had. Damages need not be 
assessed by a jury in the first in- 
stance. Twp. of Dell Rapids v. Ir- 
ving, 7 S. D. 310, 64 N. W. 149, 
29 L. R. A. 861. 

The words "or damaged" were 



Art. VI. § 13, 



THE CONSTITUTION 



53 



added to the usual provisions con- 
tained in earlier constitutions for 
the purpose of extending the remedy 
to incidental, or consequential injur- 
ies to property not actually taken 
for public use. The ascertainment 
and payment of damages are condi- 
tions precedent to the right of the 
condemning party to proceed. Al- 
though a street grade has not been 
established a change of grade caus- 
ing damage must be compensated 
for. Searle v. City of Lead, 10 S. 
D. 312, 73 X. W. 101, 39 L. R. A. 
Whittaker v. City of Dead- 
wood. 12 S. D. 608, 82 N. W. 202. 

In this state the public is author- 
ized to acquire for the purposes of 
a road no more than an easement, 
while the owner of the fee remains 
the owner of the land subjecc to 
such incumbrance. Meek v Meade 
Co.. 12 S. D. 162, 80 X. W. 182. 

In determining the "just compen- 
sation" to be allowed on a change of 
highway the question is what am- 
ount of money will compensate the 
party for the loss sustained. Inci- 
dental loss and damage present and 
prospective, may be considered by 
the jury in fixing damages in this 
class of cases. Schuler v. Board 
12 S. D. 460, 81 X. W. 890. 

The true measure of damage is 
the difference between the value of 
the land before the portion is taken 
and its value after the same is tak- 
- en. C. M. & St. P. Ry. Co. v 
Brink, 16 S. D. 644, 94 X. W. 422. 

This section does not apply to 
the use of the streets of a city for 
the purposes for which they were 
dedicated, appropriated or condemn- 
ed. Kirby v. Citizens Tel. Co 17 
S. D. 3 62, 9 7 X. W. 3, 2 Ann. Cas 

The provisions of special act of 
1883 incorporating Brookings where- 
in special assessments for sidewalks 
are made personal obligations of the 
lot owners held to be in violation of 
this section. City of Brookings v. 
Natwick, 22 S. D. 322, 117 N W 
1 8 L. R. A. (N. S.) 125 9, 133 
Am. St. Rep. 927, 17 Ann. Cas. 



The necessity and expediency of 
exercising the right of eminent do- 
main are questions political and not 
judicial. C. M. & St. P. Ry. Co. v. 
Mason, 23 S. D. 564, 122 N. W. 
601. 

Under § § 2999 and 3002, Comp. 
L., held that as to a transaction had 
before Statehood the fee of the land 
passed to the railroad company and 
did not remain in vendor. Sherman 
v. Sherman, 23 S. D. 486, 122 N. W. 
439. 

It is presumed that damages oc- 
casioned by the taking and appro- 
priation of property are ascertainable 
at law. Only a single action or as- 
sessment and payment of damages is 
contemplated. The provisions of this 
section and sec. 18, Art. 17, as to 
payment of damages before use 
have no application to the use 
of one's own property although 
such use cause damage to another, 
hence injunction will not lie to re- 
strain its use, there being an ade- 
quate remedv at law. Hyde v. M. 
D. & P. Ry. Co., 24 S. D. 386, 123 
X. W. 849. 

Where property is taken without 
compensation the right of action is 
not barred until after 20 years. Faulk 
v. Mo. Riv. & N. W. Ry. Co., 28 S. 
D. 1, 132 X. W. 233, 30 Ann. Cas. 
1130. 

The right to damages from the lo- 
cation, maintenance and operating of 
a railroad and the closing of non-ad- 
jacent streets arises from the com- 
mon law and not from the constitu- 
tion. The word "damaged" in this 
section means legal damage. Hyde 
v. M. D. & P. Ry. Co., 29 S. D. 220, 
136 X. W. 92, 40 L. R. A. (N. S.) 
48. 

An owner of property cannot be 
deprived thereof by special assess- 
ments for local improvements auth- 
orized by § 10, Art. 11. regardless 
of -fecial benefits to his property. 
Haggart v. Alton, 29 S. D. 509, 137 
X. W. 3 72. 

§ § 1, 10, and 19. ch. 180, '07 in 
so far as they interfere with vested 
rights of riparian owners in running 



THE CONSTITUTION 



Art. VI, § 13. 



streams or with owners of artesian 
wells violate this section. St. Ger. 
Irr. D. Co. v. Hawthorne D. Co., 32 
S. D. 260, 143 N. W. 124. 

The existence of the power of 
eminent domain in a railway cor- 
poration depends upon a strict com- 
pliance with each and every con- 
dition prescribed by the sovereign 
power. I C. R. Co. v. E. S. F. 
Quarry Co., 33 S. D. 63, 144 N. W. 
724. 

For an original and permanent 
damage to property by constructing 
railroad tracks in a street adjacent 
to plaintiff's property the successor of 
the company so constructing said 
tracks is liable under this section of 
the constitution. Appel v. C. M. & 
St. P. Ry. Co., 34 S. D. 306, 148 
N. W. 513, L. R. A. 1915 D 397. 

The property of a railway com- 
pany although devoted to a public 
use is still private property and is 
subject to appropriation and con- 
demnation for street purposes. 
Town of Emery v. C. M. & St. P. 
Ry. Co., 35 S. D. 583, 153 N. W. 
655. 

Under this section of the consti- 
tution the condemning party under 



the Mill Dam statute must condemn 
according to law before he is en- 
titled to take or injure property. 
Johnson v. Centerville Milling Co., 
37 S. D. 1, 156 N. W. 82. 

The order of the Board of R. R. 
Com'rs. requiring a connection of 
competing telephone lines is not 
an exercise of the power of eminent 
domain. City of Milbank v. Dak. 

Cent. Tel. Co. S. D. , 159 

N. W. 9.9. 

The restriction of damages, caus- 
ed by the construction of a drain- 
age ditch, to damages to the lands 
traversed by the ditch might result 
in damage to property without just 
compensation. Re Yankton-Clay 

Creek Dr. Ditch, S. D , 

160 N. W. 732. 

The provisions of this section are 
not self executing and the statutes 
of South Dakota do not authorize 
the condemnation of the property 
of one Railway Co. by another for 
the purpose of building a railway 
longitudinally along the line of the 
former, S. D. Cent. Ry. Co. v. C. 
M. & St. P. Ry. Co., 141 Fed. 578, 
73 C. C. A. 176. 



§ 14. No distinction shall ever be made by law between 
resident aliens and citizens, in reference to the possession, en- 
joyment or descent of property. 

§ 15. No person shall be imprisoned for debt arising out of 
or founded upon a contract. 



This section relates only to debts 
arising out of or founded upon a 
contract and does not apply to the 
enforcement by imprisonment of a 
fine for violating a city ordinance 
even though the section be civil in 
character. City of Deadwood v. 
Allen, 9 S. D. 221, 68 N. W. 333. 

On appeal from a judgment award- 
ing execution against the person in 
a civil action defendant cannot ques- 
tion the constitutionality of the 



statute permitting imprisonment, 
where the question was not raised at 
the trial and the order of arrest was 
not attacked. Lyon v. Bertolero, 23 
S. D. 82, 120 N. W. 766. 

Imprisonment for violation of ped- 
dler's license law, ch. 190, '03 as 
amended by ch. 147, '05 and ch. 201, 
'07 does not amount to imprison- 
ment for debt arising out of or found- 
ed on contract. State v. Thompson, 
25 S. D. 148, 125 N. W. 567. 



§ 16. The military shall be in strict subordination to the 
civil power. No soldier in time of peace shall be quartered in 



Art VI, § 16. 



THE CONSTITUTION 



55 



any house without consent of the owner, nor in time of war ex- 
cept in the manner prescribed by law. 

§ 17. No tax or duty shall be imposed without the consent 
of the people or their representatives in the legislature, and all 
taxation shall be equal and uniform. 



If it were intended to restrict tax- 
ation to property alone the rules 
found in Art. 11 were sufficient and 
the last clause of this section was 
inappropriate and unnecessary. The 
burdens imposed by ch. 190 '03 fall 
alike within the meaning of said 
clause on all who follow the same 
vocation. In re Watson, 17 S. D. 
486, 97 N. W. 463. 2 Ann. Cas. 321. 

Ch. 190, '03 not amended by ch. 
14 7. '05 or ch. 2 01, '07 in any man- 
ner so as to affect its constitutional- 
ity. State v. Thompson, 25 S. D. 
148, 125 N. W. 5 67. 

This section permits not only clas- 
sification but a progressive rate with- 
in classes, provided such classifica- 
tion and progression are based upon 
proper foundation and result in sub- 
stantial uniformity and equality. 
Classification based on kinship in in- 
heritance tax law, ch. 54, '05 meets 
the constitutional requirements of 
equality and uniformity of taxation. 
The method of progression in inherit- 
ance tax law, ch. 54, '05 whereby the 
whole of the greater estate is taxed 
at the higher rate instead of the ex- 
over the lower estate violates 
this section as to uniformity and 
equality. In re McKennan's Est., 25 
S. P. 369. 126 N. W. 611, 33 L. R. 
A. (N. S.) 606. 

This section is broad enough to 
comprehend, and applies to, inherit- 
ance taxes. The equality and uni- 
formity comprehended within the 
meaning of this section are satisfied 
rince tax law, ch. 54, '05 
reversing 25 S. D. 3 69 above. In re 
27 S. D. 136, 130 
X. W. 33. 33 L. R. A. (N. S.) 620, 
29 Ann. Cas 745. 



The provision that all taxation 
shall be uniform applies to special 
assessments for local improvements; 
but the city authorities may not or- 
der the construction of more tUan 
one main sewer in a sewer district. 
Bailey v. City of Sioux Falls, 28 3. 
D. 118, 132 N. W. 703. 

§ 2 2, ch. 176, '03, which purports 
to exempt certain clashes of physi- 
cians from the operation of the act 
held to violate the requirement of 
equality and uniformity of taxation. 
State v. Doran, 28 S. D. 486, 134 N. 
W. 53. 

This section applies to assessments 
for local improvements or special tax- 
ation for local improvements it being 
a limitation upon, and not a grant of, 
legislative power; but the require- 
ments of equality and uniformity are 
met when the assessments are uni- 
form in proportion to benefits. Hag- 
gart v. Alton, 29 S. D. 509, 137 N. 
W. 372. 

Automobile Law, ch. 276, '13 im- 
posing an annual fee, of which 12^ 
per cent goes to Secretary of State 
and S"V 2 per cent to county motor 
vehicle road fund, held valid. Ex- 
parte Hoffert, 34 S. D. 271, 148 N. 
W. 20, 52 L. R. A. (N. S.) 949. 

License fee imposed by Game Law, 
ch. 240, '09 is not a tax but a license 
fee for the exercise of a privilege. 
State v. Kirby, 34 S. D. 281, 148 N. 
W. 533. 

Assessments for taxation for 1909 
and 1910 on express comnanies vio- 
late the uniformity provision of this 
section. Wells Fargo & Co. v. 
Johnson, 214 Fed. ISO, 130 C. C. 
528. 



§ 18. No law shall be passed granting to any citizen, class of 
citizens or corporation, privileges or immunities which upon the 
same terms shall noi equally belong to ail citizens or corpora- 
tions. 



5 6 



THE CONSTITUTION 



Art. VI, § 1 



Comp. L. 1887 § 2433 requiring 
peddlers of merchandise not manu- 
factured in Dakota to pay a license, 
held discriminatory and void. Rod- 
gers v. McCoy, 6 Dak. 238, 44 N. 
W. 990. 

The "privileges and immunities" 
mentioned in this section are defin- 
ed. This section violated by that 
portion of ch. 27 '91 which pro- 
hibits an individual or firm from 
transacting the banking business. 
State v. Scougal, 3 S. D. 55, 51 N. 
W. 858, 15 L. R. A. 477, 44 Am. 
St. Rep. 756. 

§1 ch. 98 '95 making the expenses 
incurred by a county in caring for 
an insane person, in certain cases, 
a charge against his estate does not 
violate this section since it applies 
to all persons within a designated 
class. Bon Homme Co. v. Berndt, 
13 S. D. 309, 83 N. W. 333, 50 L. 
R. A. 351. 

The classification adopted in ch. 
190 '03 is neither unnatural, unrea- 
sonable nor arbitrary; the burden 
imposed falls alike on all belonging 
to the class and viewed either as a 
tax or license the law must be sus- 
tained. In re Watson, 17 S. D. 486, 
97 N. W. 463, 2 Ann. Cas. 321. 

The provisions of § 2 ch. 194 '07 
requiring agents to carry a dupli- 
cate permit clearly discriminate be- 
tween resident and non-resident 
dealers. Ex 'parte Hawley, 22 S. D. 
23, 115 N. W. 93, 15 L. R. A (N. 
S.) 138. 

§ 65 ch. 139 '07 is class legisla- 
tion in that it deprives members of 
the Prohibition party of any repre- 
sention from 32 counties of the 
state though votes for such party 
candidate for governor were cast in 
every county in the state at the pre- 
ceding general election. Morrow 
v. Wipf, 22. S. D. 146, 115 N. W. 
1121. 

Ch. 131, '0 7 does not amount to a 
denial of the equal protection of the 
law. State v. Central Lbr. Co., 24 
S. D. 136, 123 N. W. 504, 42 L. R. 
A. (N. S.) 804, affirmed in Central 
Lbr. Co. v. State, 226 U. S. 157, 57 
L. ed. 164, 33 Sup. Ct. Rep. 66. 



§ § 1 and 3, ch. 132, '07 do not 
violate this sectio'n. As to sections 2 
and 4 of said chapter plaintiff is not 
affected thereby, therefore the same 
being severable from the remainder 
of the act he is not in position to 
question them. Pugh v. Pugh, 25 
S. D. 7, 124 N. W. 959, 32 L. R. A. 
(N. S.) 954. 

Chapters 215 and 218, '07, "double 
damage" laws, are within the legisla- 
tive power and do not deny the equal 
protection of the law. Jensen v. S. D. 
Cent. Ry. Co., 25 S. D. 506, 127 N. 
W. 650, 35 L. R. A. (N. S.) 1015, 
24 Ann. Cas. 700, Kennedy v. C. M. 
& St. P. Ry. Co., 28 S. D. 94, 132 
N. W. 802. But see C. M. & St. P. 
Ry. Co. v. Polt 232 U. S. 165, 58 L. 
ed. 554, 34 Sup. Ct. Rep. 301 and C. 
M. & St. P. Ry. Co. v. Kennedy, 23 2 
U. S. 626, 58 L. ed. 762, 34 Sup. 
Ct. Rep. 463. 

Ch. 176, '03 which purports to 
exempt certain classes of physicians 
from the operation of the act held 
valid as to the exemption from exam- 
ination fee and other requirements 
as to qualifications, but invalid as to 
the exemption from payment of the 
occupation tax because in contraven- 
tion of the requirements of equality 
and uniformity of taxation. The 
classification of medical practition- 
ers as itinerants and non-itinerants 
held valid. State v. Doran, 28 S. D. 
486, 134 N. W. 53. 

Classification of motor vehicles by 
ch. 2 76, '13 for 'the purpose of im- 
pcsine - a privilege tax held not to be 
discriminatory. Ex parte Hoffert, 34 
S. D. 271, 148 N. W. 20, 52 L. R. 
A. (N. S.) 949. 

One cbarged with hunting without 
a license may not attack the validity 
of the act as discriminating against 
non-residents in the absence of a 
showing thai he was a non-resident. 
State v. Kirbv, 34 S. D. 281, 148 N. 
W. 533. 

A transient merchant engaged in 
selling fruit not of his own produc- 
tion held not entitled to question 
the constitutionality of a city ordi- 
nance as discriminatory, he not be- 
ing affected by the failure of the 



Art. VI. § IS 



THE CONSTITUTION 



57 



ordinance to except from its opera- 
tion a vendor who retails his own 
products. City of Dell Rapids v. 
McShane, 3 7 S. D. — , 156 N. W. 

Ch. 219 "0 7 violates the equal 
protection of the law clause of the 
federal constitution. For a discus- 
sion of the power of legislature to 
make classifications see C. M. & St. 
P. Ry. Co. v. Westby, 17S Fed. 619, 
102 C. C. A. 65. 

N. D. law prohibiting the sale of 
lard except in bulk or in packages 



of designated weights held not ob- 
noxious to the equal protection of 
the law as singling out lard with 
out any reasonable ground therefor. 
Armour & Co. v. State of N D. 2 40 
U. S. 510, 60 L. ed. 771, 36 Sup. 
Ct. Rep. 440, affirming 27 N. D. 
177. 145 N. W. 1033. 

"Blue Sky" Law, ch. 275 '15 does 
not violate the equal protection of 
the law. Caldwell v. S. F. Stock 

Yds. Co., 242 U. S , 61 L. ed 

, 37 Sup. Ct. Rep. 224. 



§ 19. Elections shall be free and equal, and no power, civil 
or military shall at any time interfere to prevent the free ex- 
ercise of the right of suffrage. Soldiers in time of war may vote 
at their post of duty in or out of the state, under regulations to 
be prescribed by the legislature. 



This section does not inhibit the 
legislature from requiring the 
names of all candidates for office 
in this state to be printed upon the 
official ballot and in effect denying 
to electors the right of writing up- 



on the official ballot the name of 
any candidate. Chamberlain v. 
Wood, 15 S. D. 216, 88 N. W. 109, 
56 L R. A. 187, 91 Am. St. Rep. 
674. 



All courts shall be open, and every man for an injury 
done him in his property, person or reputation, shall have reme- 
dy by due course of law. and right and justice, administered 
without denial or delay. 



This section does not prohibit 

the legislature from limiting appeals 

to a defined class of cases. McClain 

v. Williams. 1 S. D 332, 73 N. W. 

3 L. R. A. 2 8 7. 

Where disqualification, if permit- 
ted to prevail, destroys the only 
tribunal in which relief may be 
sought, and thus effectually bars 
the door of justice, the disqualified 
judge is bound to hear and decide 
the case, otherwise this section of 
the constitution would be violated. 
McCoy v. Handlin, 35 S. D 487. 
361, L! R. A. 1915E 
Ann. C. 1046. 



If the apportionment of property 
and indebtedness upon a division 
of a school district is a judicial act 
then § 69 ch. 135 '07 violates this 
section, but such apportionment is 
an administrative act, not a Judicial 
one. Smithwick Sch. Dist. v. Lin- 
coln Sch. Dist. 3 7 S. D. 3 8, 156 N. 
W. 5 8 7. 

Injuries done to one in his person, 
within the meaning of this section, 
include injury to one's personal 
lights as well as physical injuries to 
the person. Mobers v. Scott, i 
D. — .161 N. W. 9 9 8. 



§ 21. \o power of suspending taws shall be exercised, un- 
»y lb.' legislature or its authority. 

'-. No person -ha]] be attainted of treason or felony by 
the legislature. 



5 8 THE CONSTITUTION Art. VI, § 23, 



§ 23. Excessive bail shall not be required, excessive fines 
imposed, nor cruel punishments inflicted. 

A punishment by fine of not less State v. Becker, 3 S. D. 29, 51 N. 

than $100 nor more than $500 and W. 1018. 

by imprisonment in the county Penal Code § 257 and an impris- 

jail not less than 60 days nor more onment for 12 years thereunder do 

than 6 months prescribed by ch. not constitute cruel punishment. State 

101 '90 is not a cruel punishment v. Stumbaugh, 28 S. D. 50, 132 N. 

within the meaning of this section. W. 666. 

§ 24. The right of the citizens to bear arms in defense of 
themselves and the state shall not be denied. 

§ 25. Treason against the state shall consist only in levy- 
ing war against it, or in adhering to its enemies, or in giving 
them aid and comfort. No person shall be convicted of treason 
unless on the testimony of two witnesses to the same overt act 
or confession in open court. 

§ 26. All political power is inherent in the people, and all 
free government is founded on their authority, and is instituted 
for their equal protection and benefit, and they have the right in 
lawful and constituted methods to alter or reform their forms 
of government in such manner as they may think proper. And 
the State of South Dakota is an inseparable part of the American 
Union and the constitution of the United States is the supreme 
law of the land. 

§ 27. The blessings of a free government can only be main- 
tained by a firm adherence to justice, moderation, temperance, 
frugality and virtue and by frequent recurrence to fundamental 
principles. 

ARTICLE VII. 

ELECTIONS AND RIGHT OF SUFFRAGE 

§ 1. Every male person resident of this state who shall be 
of the age of twenty-one years and upwards, not otherwise dis- 
qualified,' belonging to either of the following classes, who shall 
be a qualified elector under the laws of the territory of Dakota 
at the date of the ratification of this constitution by the people, 
or who shall have resided in the United States one year, in this 
state six months, in the county thirty days, and in the election 
precinct where he offers his vote teu days next preceding any 
election, shall be deemed a qualified elector at such election: 

First, citizens of the United States. 

Second, persons of foreign birth who shall have declared 
their intention to become citizens conformably to the laws of the 
United States upon the subject of naturalization. 



Art. VII, § 1 



THE CONSTITUTION 



59 



Tbis section does not inhibit the 
legislature from requiring the names 
of all candidates for office in this 
state to be printed upon the offi- 
cial ballot and in effect denying to 
electors the right of writing upon 
the official ballot the name of any 
candidate. Chamberlain v. Wood, 
15 S. D. 216. 88 X. W. 109, 56 L. 
R. A. 187, 91 Am. St. Rep. 674. 

The rights of the individual elec- 
tor are not impaired by substituting 
a direct primary, conducted at pub- 
lic expense according to established 
rules, for the methods formerly em- 
ployed by political parties in this 
state. Healer v. Wipf, 22 S. D. 
343, 117 N. W. 521. 

An Indian who has abandoned tri- 
bal relations and taken land in sev- 
eralty separate and apart from his 
tribe and has adopted the habits of 
civilized life thereby became a citi- 
zen of the United States and of this 
state. State v. Nimrod, 30 S. D. 
239, 138 N. W. 377. 

As to citizenship of Indians see 



Elk v. Wilkins. 112 U. S. 94, 2 8 L. 
ed. 643, 5 Sup. Ct. Rep. 41. 

Indians who have taken lands in 
allotment are citizens and qualified 
electors of the state. U. S. v. Rickert, 
106 F. 1. 

Under this section Indian allot- 
tees under Act of Cong. Feb. 8, '8 7, 
24 Stat. 388, have the right to vote 
and hold office and the retention by 
Congress of its control over the 
sale of intoxicating liquors to In- 
dians was not inconsistent with its 
grant to them of the rights, privi- 
leges and immunities of citizenship. 
Farrell v. U. S. 110 Fed. 942, 49 
C. C A. 183. 

The citizenship of Indian allottees 
conferred by Act of Congress did 
not operate to withdraw them nor 
their property from the- control and 
protection of the U. S. Government. 
U. S. v. Pearson, 231 Fed. 270. 

(For the vote on the suffrage 
amendments submitted since state- 
hood see notes to Art. XXIII). 

Amendment proposed by ch. 159 
'17 to be voted on Nov. 1918. 



§ 2. The legislature shall at its first session after the admis- 
sion of the state into the union submit to a vote of the electors of 
the state the following question to be voted upon at the next gen- 
eral election held thereafter, namely: "Shall the word 'male' be 
stricken from the article of the constitution relating to elections 
and the right of suffrage." If a majority of the votes cast upon 
that question are in favor of. striking out said word "male," it 
shall be stricken out and there shall thereafter be no distinction 
between males and females in the exercise of the right of suf- 
frage at anv election in this state. 



— The above question was sub- 
mitted to the people at the election 
held in November, 1890, and was re- 



jected by the following vote: 
22,972; against, 45,682. ■ 



For, 



§ 3. All votes shall be by ballot, but the legislature may 
provide for numbering ballots for the purpose of preventing and 
detecting fraud. 

§ 4. All general elections shall be biennial. 

^ 5. Electors shall in "all cases except treason, felony or 
breach of the peace, In- privileged from arrest during their at- 
tendance at elections and in going to and returning from the 
same. And no elector shall be obliged to do military duty on the 
days of electio !>t in time of war op public danger. 



THE CONSTITUTION VII, § 6. 



§ 6. No elector shall be deemed to have lost his residence in 
this state by reason of his absence on business of the United 
States or of this state, or in the military or naval service of the 
United States. 

§ 7. No soldier, seaman or marine in the army or navy of 
the United States shall be deemed a resident of this state in 
consequence of being stationed therein. 

A soldier resident upon Ft. Meade fied election, nor could lie after his 

military reservation from the date re-enlistment. McMahon v. Polk, 

of his discharge to the time of re- 10 S. D. 296, 73 N. W. 77, 47 L. 

enlistment did not become a quali- R. A. 830. 

§ 8. No person under guardianship, non compos mentis or 
insane, shall be qualified to vote at any election, nor shall any 
person convicted of treason or felony be qualified to vote at any 
election unless restored to civil rights. 

§ 9. Any woman having the qualifications enumerated in 
Section 1 of this article as to age, residence and citizenship, and 
including those now qualified by the laws of the territory, may 
vote at any election held solely for school purposes and may 
hold any office in this state, except as otherwise provided in this 
constitution. 

(Amendment to this section pro- notes to Art. XXIII). 
posed by ch. 38, '93 rejected. See 

ARTICLE VIII. 

EDUCATION AND SCHOOL LANDS 

§ 1. The stability of a republican form of government de- 
pending on the morality and intelligence of the people, it shall be 
the duty of the legislature to establish and maintain a general 
and uniform system of public schools wherein tuition shall be 
without charge, and equally open to all; and to adopt all suitable 
means to secure to the people the advantages and opportunities 
of education. 

See Streich v. Board of Ed., 34 S. 1915A 632, Ann. Cas. "60. 

D. 169, 147 N. W. 779, L. R. A. 

§ 2. All proceeds of the sale of public lands that have here- 
tofore been or may hereafter be given by the United States for 
the use of public schools in the state; all such per centum as 
may be granted by the United States on the sales of public 
lands; the proceeds of all property that shall fall to the state by 
escheat; the proceeds of all gifts or donations to the state for 
public schools or not otherwise appropriated by the terms of the 
gift; and all property otherwise acquired for public schools, 
shall be and remain a perpetual fund for the maintenance of pub- 



Art. VIII. THE CONSTITUTION 61 

Is in the state. It shall he deemed a trust fund held by the 
state. The principal shall forever remain inviolate, and may 
"be increased, but shall never be diminished, and the state shall 
maki 11 losses thereof which may in any manner occur. 

The legislature may issue bonds by Art. XIII, § 2. In re State 

to make good losses to the perman- Bonds, 7 S. I). 42, 63 N. W. 2 2 3. 

school fund and such bonds are See note State ex rel Byrne v. 

not to be considered a portion of Ewert under the next section, 
the $100,000 state debt limit fixed 

§ 3. The interest and income of this fund, together with 
the net proceeds of all fines for violation of state laws and all 
other sums which may be added thereto by law, shall be faith- 
fully used and applied each year for the benefit of the public 
schools of the state, and shall be for this purpose apportioned 
among and between all the several public school corporations of 
tate in proportion to the number of children in each, of 
school age. as may be fixed by law: and no part of the fund, either 
principal or interest, shall ever be diverted, even temporarily, 
from this purpose or used for any other purpose whatever than 
the maintenance of public schools for the equal benefit of all the 
people of the state. 

The legislature may issue bonds tainment, to the local corporations 

to make good losses to the interest and no loss was sustained which 

ncome fund and such bonds the state as trustee was required to 

are not to be considered a portion make good; nor did the fact that a 

of thp state debt limit fixed by Art. similar neglect in the succeeding 

2. not because such fund is year resulted in a loss of the funds 
included in the expression "the per- by the defalcation of the state treas- 
manent school and other education- urer render the commissioner liable, 
ai funds" found in Art. 8 § 13 (be- because such neglect was not the 
cause the obligation to pay such proximate cause of such loss. State 
loss is not a contracted debt within v. Ruth, 9 S. D. 84, 68 N. W. 189. 
the meaning of Art. 13 § 2) but It was sought to prohibit the 
because it is not allowable to so State Treasurer from turning into 
read the constitution as to make it the general fund of the state, pur- 
forbid the state to do a thing which suant to § 1 8 'ch. 234 '11, the inci- 
it expressly requires the state shall dental interest received from de- 
do. In re State Bonds, 7 S. D. 4 2, positary banks on the permanent 

W. 2 23. school fund and on the interest and 

-^ect of the commissioner of income fund. Application denied 

school and public lands to appor- on the ground that the writ of pro- 

tion certain moneys of the inter- hibition would not lie to restrain a 

est and income fund until October ministerial act. State ex rel. Byrne 

31st, 1893, instead of July 1st. v. Ewert, 30 S. D. 622, 156 N. W. 

I, did not occasion an appre- 
ciable loss, or one capable of ascer- 

§ 4. After one year from the assembling of the first legis- 
lature, the lands granted to the state by the United States for 
the use of public schools may be sold upon the following condi- 



6 2 THE CONSTITUTION Arc. VIII, § 4. 

tions and no other: Not more than one-third of all such lands 
shall be sold within the first five years, and no more than two- 
thirds within the first fifteen years after the title thereto is vest 1 
ed in the state, and the legislature shall, subject to the provisions 
of this article, provide for the sale of the same. 

The commissioner of school and public lands, the state audi- 
tor and the county superintendent of schools of the counties sev- 
erally, shall constitute boards of appraisal and shall appraise all 
school lands within the several counties which they may from 
time to time select and designate for sale, at their actual value 
under the terms of sale. 

They shall take care to first select and designate for sale the 
most valuable lands; and they shall ascertain all such lands as 
may be of special and peculiar value, other than agricultural, 
and cause the proper subdivision of the same in order that the 
largest price may be obtained therefor. 

§ 5. No land shall be sold for less than the appraised value 
and in no case for less than ten dollars an acre. The purchaser 
shall. pay one-fourth of the purchase price in cash, and the re- 
maining three-fourths as follows, one-fourth in five years, one- 
fourth in ten years, one-fourth in fifteen years, with interest 
thereon at the rate of not less than five per centum per annum, 
payable annually; and all such subdivided lands may be sold for 
cash; provided further that the purchaser or purchasers shall 
have the right and option of paying the balance of the purchase 
price, or any installment thereof at any time. All sales shall be 
at public auction to the highest bidder, after sixty days adver- 
tisement of the same in at least two newspapers of general cir- 
culation in the vicinity of the lands to be sold, and one at the 
seat of government, Such lands as shall not have been specially 
subdivided shall be offered in tracts of not more than eighty 
acres, and these subdivided in the smallest subdivision of lands 
designated for sale and not sold within two years after their ap- 
praisal shall be re-appraised by the board of appraisal as here- 
inbefore provided before they are sold. 

(As amended Nov. 1914, pursuant ject to sale on execution. Brooke 

to ch. 130, '13). v. Eastman, 17 S. D. 339, 96 N. W. 

A purchaser of land under the 699. 
provisions of this section had an in- Amendment proposed by ch. 160 

terest in the land which was sub- '17 to be voted on Nov. 1918. 

§ 6. All sales shall be conducted through the office of the 
commissioner of school and public lands as may be prescribed by 
law, and returns of all appraisals and sales shall be made to said 
office. No sale shall operate to convey any right or title to any 
lands for sixty days after the date thereof, nor until the same 



Art. VIII, § 6. THE CONSTITUTION 63 

shall have received the approval of the governor in such form 
as may be provided by law. No grant or patent for any such lands 
shall issue until final payment be made. 

A sale operates to convey some der execution the patent should is- 
right and title to the land after 60 sue to the execution purchaser who 
days have expired and the approval has complied with the terms of the 
of the Governor has been obtained. contract of sale. Brooke v. East- 
Such right being subject to sale un- man. 17 S. D. 339, 96 N. W. 699. 

§ 7. All lands, money or other property donated, granted or 
received from the United States or any other source for a uni- 
versity, agricultural college, normal schools or other educational 
or charitable institution or purpose, and the proceeds of all such 
lands and other property so received from any source, shall be 
and remain perpetual funds, the interest and income of which, 
together with the rents of all such lands as may remain unsold, 
shall be inviolably appropriated and applied to the specific ob- 
jects of the original grants or gifts. The principal of every such 
fund may be increased, but shall never be diminished, and the 
interest and income only shall be used. Every such fund shall be 
deemed a trust fund held by the state, and the state shall make 
good all losses therefrom that shall in any manner occur. 

Ch. 9 7 '95 requiring an appro- of the income from the public lands 

priation before a warrant could be under this section of the constitu- 

issued had no application to war- tion. Heston v. Mayhew, 9 S. D. 

rants required to be issued to the 501, 70 N. W. 635. 
various institutions for their share 

§ 8. All lands mentioned in the preceding section shall be 
appraised and sold in the same manner and by the same officers 
and boards under the same limitations, and subject to all the 
conditions as to price, sale and approval, provided above for the 
appraisal and sale of lands for the benefit of public schools, but 
a distinct and separate account shall be kept by the proper of- 
ficers of each of such funds. 

§ 9. The lands mentioned in this Article shall be leased for 
pasturage, meadow, farming, the growing of crops of grain and 
general agricultural purposes, and at public auction after notice 
as hereinbefore provided in case of sale and shall be offered in 
tracts not greater than one section. All rents shall be payable an- 
nually in advance, and no term of lease shall exceed five years, 
nor shall any lease be valid until it receives the approval of the 
governor . (As amended Nov. 1910 pursuant to ch. 18 '09.) 

• Amendment proposed by ch. 232 '15 rejected). 

§ 10. No claim to any public lands by any trespasser there- 
on by reason of occupancy, cultivation or improvement thereof, 



64 THE CONSTITUTION Art. VIII, § 10. 

shall ever be recognized; nor shall compensation ever he made 
on account of any improvements made by such trespasser. 

The following amendement to Sec- election held November 8, 1904, and 
tion 11, Article 8, was submitted pur- was adopted by a vote of 38,681 to 
suant 'to ch. 9 9, '03 at the general 21,424. 

§ 11. The moneys of the permanent school and other edu- 
cational funds shall be invested only in first mortgages upon 
good improved farm lands within this state, as hereinafter pro- 
vided, or in bonds of school corporations within this state, or in 
bonds of the United States or of the state of South Dakota or of 
any organized county, township or incorporated city in said state. 
The legislature shall provide by law the method of determining 
the amounts of said funds, which shall be invested from time to 
time in such classes of securities respectively, taking care to se- 
cure continuous investments as far as possible. 

All moneys of said funds which may from time to time be 
designated for investment in farm mortgages and in the bonds 
of school corporations, or in bonds of organized counties, town- 
ships or incorporated cities within this state, shall for such pur- 
pose be divided among the organized counties of the state in pro- 
portion to population as nearly as provisions by law to secure 
continuous investment may permit. The several counties shall 
hold and manage the same as trust funds, and they shall be and 
remain responsible and accountable for the principal and interest 
of all such moneys received by them from the date of receipt until 
returned because not loaned; and in case of loss of any money so 
apportioned to any county, such county shall make the same good 
out of its common revenue. Counties shall invest said money 
in bonds of school corporations, counties, townships or cities, or 
in first mortgages upon good improved farm lands within their 
limits respectively. The amount of each loan shall not exceed 
one-third of the actual value of the lands covered by the mortgage 
given to secure the same, such value to be determined by the 
board of county commissioners of the county in which the land 
is situated and in no case shall more than five thousand ($5,000) 
dollars be loaned to any one person, firm or corporation and the 
rate of interest shall not be less than five per cent per annum 
and shall be such other and higher rate as the legislature may 
provide and shall be payable semi-annually on the first day of 
January and July; Provided, that whenever there are moneys of 
said fund in any county amounting to one thousand dollars that 
cannot be loaned according to the provisions of this section and 
any law pursuant thereto, the said sum may be returned to the 
state treasurer to be intrusted to some other county or counties, 
or otherwise invested under the provisions of this section. 



Art. VIII, § 11. THE CONSTITUTION 65 

Each county shall semi-annually, on the first day of January 
and July, render an account of the condition of the funds intrust- 
ed to it to the auditor of state, and at the same time pay to or ac- 
count to the state treasurer for the interest due on all funds in- 
trusted to it. 

The legislature may provide by general law that counties 
may retain from interest collected in excess of five per centum 
per annum upon all said funds intrusted to them, not to exceed one 
per centum per annum. But no county shall be exempted from the 
obligation to make semi-annual payments to the state treasurer 
of interest at the rate provided by law for such loans, except only 
said one per centum, and in no case shall the interest so to be 
paid be less than five per centum per annum. 

The legislature shall provide by law for the safe investment 
of the permanent school and other educational funds, and for 
the prompt collection of interest and income thereof, and to carry 
out the objects and provisions of this section. 

The following amendment in sec- election held November 4, 1902, and 
tion 11, of article 8, was submitted was adopted Iby a vote of 46,472 for, 
pursuant to ch. 88, '01 at the general to 9,001 against. 

The rate of interest upon all investments of the permanent 
school or other educational funds mentioned in Section 11 of 
Article VIII. of the constitution of this state is hereby changed 
and reduced from six per centum per annum to five per centum 
per annum, wherever the said words "six per centum per an- 
num" occur in said section. That if the foregoing amendment 
shall be approved and ratified by the people at said election, as 
provided by article XXIII of the constitution, said Section 11 of 
Article VIII of the constitution shall be thereby amended by 
striking out the said words six per centum per annum where- 
ever they occur in said section 11 and substituting in lieu there- 
of the words five per centum per annum." 

Note — Compare the 1904 amend- resulted in a loss to the interest 

ment with Art. 28. and income fund which the state 

Failure of the commissioner of was required to make good and 

school and public lands to make an which therefore it could recover 

HStimatP of the permanent fund from the commissioner. State v. 

which would be on hand available Ruth, 9 S. D. 84. 68 N. W. 189; 14 

for loans on July 1st, 1893, and to S. D. 92. 84 N. W. 394. 
notify the county auditors thereof 

§ 12. The governor may disapprove any sale, lease or in- 
dent other than such as are intrusted to the counties. 

§ 13. All losses to the permanent school or other educa- 
tional funds of this state which shall have been occasioned by the 
dofalontion. negligence, mismanagement or fraud of the agents 






66 THE CONSTITUTION Art. VIII, § 13. 

or officers controlling and managing the same, shall be audited 
by the proper authorities of the state. The amount so audited 
shall be a permanent funded debt against the state in favor of the 
fund sustaining the loss upon which not less than six per centum 
of annual interest shall be paid. The amount of indebted- 
ness so created shall not be counted as a part of the indebtedness 
mentioned in Article XIII., Section 2. 

The provision that "the amount it was within the authority of the 

so audited shall be a permanent legislature to issue and sell bonds 

funded debt against the state" does to make good a loss to the per- 

not mean that it was to be a per- manent school fund. In re State 

petual inextinguishable debt, hence Bonds, 7 S. D. 42, 63 N. W. 223. 

§ 14. The legislature shall provide by law for the protec- 
tion of the school lands from trespass or unlawful appropriation, 
and for their defense against all unauthorized claims or efforts to 
divert them from the school fund. 

§ 15. The legislature shall make such provision by general 
taxation and by authorizing the school corporations to levy such 
additional taxes as with the income from the permanent school 
fund shall secure a thorough and efficient system of common 
schools throughout the state. 

§ 16. No appropriation of lands, money or other property or 
credits to aid any sectarian school shall ever be made by the 
state, or any county or municipality within the state, nor shall 
the state or any county or municipality within the state accept 
any grant, conveyance, gift or bequest of lands, money or other 
property to be used for sectarian purposes, and no sectarian in- 
struction shall be allowed in any school or institution aided or 
supported by the state. 

These provisions are self execu- benefit of or to any sectarian school, 

ting and control all legislation up- See further under Art. 6 § 3. Synod 

on the subject of appropriating of Dakota v. State, 2 S. D. 366, 50 

money or other property for the N. W. 632, 14 L. R. A. 418. 

§ 17. No teacher, state, county, township or district school 
officer shall be interested in the sale, proceeds or profits of any 
book, apparatus or furniture used or to be used in any school in 
this state, under such penalties as shall be provided by law. 

ARTICLE IX. 

COUNTY AND TOWNSHIP ORGANIZATION 

§ 1. The legislature shall provide by general law for or- 
ganizing new counties, locating the county seats thereof and 
changing county lines ; but no new county shall be organized so 
as to include an area of less than twenty-four congressional 



Art. IX, 



THE CONSTITUTION 



67 



townships, as near as may be without dividing a township or 
fractional township, nor shall the boundaries of any organized 
county be changed so as to reduce the same to a less area than 
above specified. All changes in county boundaries in counties 
already organized, before taking effect, shall be submitted to the 
electors of the county or counties to be affected thereby, at the 
next general election thereafter and be adopted by a majority of 
the votes cast in each county at such election. Counties now or- 
ganized shall remain as they are unless changed according to 



the above provisions. 

The boundaries of unorganized 
counties are left to be changed by 
the legislature without submitting 
the question to the residents of such 
unorganized counties. The phrase 
"county or counties to be affected 
thereby" includes only organized 
counties. The matter of apportion- 
ing indebtedness upon the division 
of a county is entirely within the 
control of the legislature even in 
the case of organized counties. If 
it made no provision therefor it may 
be presumed that it did not deem 
such provision necessary. The first 
part of this section down to "but 
no new county" constitutes a man- 
datory direction to the legislature, 
yet so far as the same relates to 
changing county lines there is no 
authority vested in any department 
of government to enforce the com- 
mand. "The courts are not the 



guardians of the rights of the peo- 
ple of the state except as those 
rights are secured by some consti- 
tutional provision which comes 
within judicial cognizance." Stuart 
v. Kirley, 12 S. D. 245, 81 N. W. 
147. 

Under Rev. Pol. Code Sections 
750-774 relating to organization of 
counties and providing for a tempor- 
ary location of county seat until the 
next general election thereafter, the 
selection of such county seat is tem- 
porary, and the selection is not made 
by a majority vote within the Con- 
stitution; the county board must sub- 
mit the question at a general elec- 
tion. State ex rel. Simons v. Ny- 
quist et al., 22 S. D. 200, 116 N. W. 
754. 

See note, Jarvis v. Brown, under 
next section. 



§ 2. In counties already organized where the county seat 
has not been located by a majority vote, it shall be the duty of 
the county board to submit the location of the county seat to the 
flcf'tors of said county at a general election. The place receiving 
a majority of all votes cast at said election shall be the county 
seat of said county. 



If Castlewood was selected county 
seat of Hamlin county by the vote 
of the electors at an election held 
in 1884 then it retained the same at 
the election held in 1890 because 
its competitor, Bryant, did not se- 
cure the two thirds vote required 
by the next section. If, however, 
the location of the county seat at 
Castlewood was effected by Special 
Act of the Legislature of 1885 and 
not by the election of 1884 then 



this section applied and Bryant be- 
came the county seat. The su- 
preme court affirmed the finding of 
the trial court that the county seat 
was located by the election of 1884. 
Remington v. Higgins, 6 S. D. 313, 
60 N. W. 73. 

§ 1 ch. 64 '90 in so far as the 
same relates to the presentment of 
a petition to the county board in a 
case where the county seat has not 
been located by a majority vote is 



THE CONSTITUTION Art. IX, § 2. 



inoperative because in conflict with four years. State ex rel. Cosper v. 

this section which is self executing. Porter, 13 S. D. 126, 82 N. W. 415. 
A tax payer or elector of the county In the selection of a permanent 

is a party beneficially interested county seat under this section every 

and entitled to compel by manda- town has a constitutional right to 

mus the performance of such pub- have its candidacy submitted at a 

lie duty. State ex rel, Adkins v. general election and every voter has 

Lien, 9 S. D. 297, 68 N. W. 748. the same right to cast his vote at 

The phrase "a majority of all a, general election for any town which 
votes cast at said election" is so is a candidate. Ch. 112, '11 which 
transpicuous that no rule of con- seeks to eliminate towns as candi- 
struction has any application there- dates at a general election through a 
to. A majority of the votes cast primary election violates this see- 
on the question was not sufficient. tion. The words "in counties already 
Adkins v. Lien, 10 S. D. 436, 73 organized" in this and the previous 
N. W. 909. section do not relate to the time of 

No provision was made by this the adoption of the constitution but 

section as to procedure in case one to the time that application of the 

of the places voted for did not re- provisions of the constitution is 

ceive a majority of the votes. There sought to be made. State ex rel. 

was therefore no conflict between Jarvis v. Brown, 33 S. D. 22^, 145' 

this section and § 2 ch. 64 '90 N. W. 444. 
which prohibits another vote for 

§ 3. Whenever a majority of the legal voters of any organ- 
ized county shall petition the board to change the location of the 
county seat which has once been located by a majority vote, 
specifying the place to which it is to be changed, said board 
shall submit the same to the people of the said county at the 
next general election, and if the proposition to change the county 
seat be ratified by two-thirds of the votes cast at said election 
(except as hereinafter provided) then the county seat shall be 
changed; otherwise not. Provided, however, that in cases where 
the county seat is not located at a railroad station, and it is pro- 
posed to remove the same to a railroad station, then the propo- 
sition to change the county seat may be ratified by three-fifths of 
the votes cast at said election upon the question of such remov- 
al, and in such case if the proposition to change the county seat 
be ratified by three-fifths of the votes cast at said election upon 
the question of such removal then the county seat shall be chang- 
ed, otherwise not. A proposition to change the location of the 
county seat of any organized county shall not again be submitted 
before the expiration of four years. (As amended Nov. '02 pursu- 
ant to ch. 87 '01.) 

Special Act of Legislature of was superseded by Const. Art. 9 § 

1885 relating to Hamlin county 3 which requires a two thirds vote. 

which ratified the selection of Cas- Remington v. Higgins, 6 S. D. 313, 

tlewood as the county seat at an 60 N. W. 73. 

election held in 1884 and which Whenever a petition purporting 

provided that the same might there- to be signed by a majority of the 

after be changed by a majority vote legal voters of the county is pre 



Art. IX, 



THE CONSTITUTION 



69 



sented to the board it is its duty to 
consider such petition and decide 
whether or not a majority of the 
legal voters of the county are ask- 
ing for the submission of the ques- 
tion specified and it is its further 
duty which may be enforced by 
mandamus, to make a record of its 
determination. State ex rel. An- 



drews v. Bovden, 18 S. D. 388, 100 
N. W. 763. 

Until a valid order was entered 
the board possessed the power to 
allow withdrawals, to strike illegal 
names from a petition and to recon- 
sider any action previously taken. 
State ex rel. Andrews v. Boyden, 21 
S. D. 6, 108 N. W. 897, 15 Ann. 
Cas. 1122. 

§ 4. The legislature shall provide by general law for or- 
ganizing the counties into townships, having due regard for con- 
gressional township lines and natural boundaries, and whenever 
the population is sufficient and the natural boundaries will per- 
mit, the civil townships shall be co-extensive with the congres- 
sional townships. 

§5. In each organized county at the first general election 
held after the admission of the State of South Dakota into the 
union, and every two years thereafter, there shall be elected a 
clerk of the court, sheriff, county auditor, register of deeds, treas- 
urer, state's attorney, surveyor, coroner and superintendent of 
schools, whose terms of office respectively shall be two years, 
and except the clerk of the court, no person shall be eligible for 
more than four years in succession to any of the above named 
offices. 



( Amendments rejected proposed by 
ch. 37, "93 and ch. 131, '13. See notes 
to Art. XXIII). 

No provision was made for the 
election of a clerk of the circuit 
court until the election of Novem- 
ber 1890. Driscoll v. Jones, 1 S. 
D. 8, 44 N W. 726. 

Ch. 90 '05 in so far as it pur- 
ports to authorize the court, "when 
in the opinion of the court the ends 
of justice would be promoted there- 
by," to appoint a person to act tem- 
porarily as states attorney and 
thereby supplant such officer is an 



attempt to transfer to the circuit 
court the power lodged by the con- 
stitution in the voters. State v. 
Flavin, 35 S. D. 530, 153 N. W. 
296. 

The word "eligible" means legally 
qualified for election or appointment. 
A County Superintendent after hold- 
ing office four years may neverthe- 
less continue to hold the office until 
his successor is elected or appoint- 
eded. Jones v. Roberts Co., 27 S. 
D. 519, 131 N. W. 861, 34 L. R. A. 
(N. S.) 1170. 



§ 6. The legislature shall provide by general law for such 
county, township and district officers as may be deemed nec- 
essary, and shall prescribe t lie duties and compensation of all 
county, township and district officers. 



Ch. 272, '03 prescribing salaries of 
County Auditors and Registers of 
Deeds held not in violation of above 
section as a delegation of legislative 
power. Brookings Co. v. Murphy, 23 
S. D. 311, 121 N. W. 793. 



§ 10 ch. 81 '90 fixing salaries 
of clerks of courts according to 
county population does not violate 
this section. Minnehaha Co. v. 
Thorne, 6 S. D. 449. 61 N. W. 688. 
Under ch. 107 '05 a party county 



70 THE CONSTITUTION Art. IX, § 6. 



convention had authority to nomin- This section authorizes the legis- 

ate candidates for county commis- lature to provide for such county 

sioner, not the delegates to the con- officers as it may deem necessary 

vention from the particular com- and to prescribe their duties and 

missioner district. State ex rel. compensation. State v. Board of 

Long v. Rexford, 21 S. D. 86, 109 Com'rs., 36 S. D. 606, 156 N. W. 

N. W. 216. 96. 

§ 7. All county, township and district officers shall be elec- 
tors in the county, township or district in which they are elected; 
provided, that nothing in this section shall prevent the holding of 
school offices by any person as provided in section, 9, article VII; 
and provided, further, that the legislature shall have authority 
to prescribe additional qualifications for superintendent of 
schools, not inconsistent herewith. (As amended Nov. 1906 pur- 
suant to ch. 68, '05.) 

This section does not militate county. State v. Board of Com'rs, 
against the authority of the legisla- 36 S.~D. 606, 156 N. W. 96. 
ture over the fiscal affairs of a 

ARTICLE X. 

MUNICIPAL CORPORATIONS 

§ 1. The legislature shall provide by general laws for the 
organization and classification of municipal corporations. The 
number of such classes shall not exceed four, and the powers of 
each class shall be defined by general laws, so that no such cor- 
porations shall have any powers, or be subject to any restrictions 
other than those of all corporations of the same class. The leg- 
islature shall restrict the power of such corporations to levy 
taxes and assessments, borrow money and contract debts, so as 
to prevent the abuse of such power. 

The validity of the organization pal corporation by reason of this 

of a municipal corporation cannot section and its failure to organize 

be questioned in a prosecution for under the general law. Tripp v. 

the violation of one of its ordinan- City of Yankton, 10 S. D. 516, 74 

ccs. City of Elk Point v. Vaughn, N. W. 447. 
1 Dak. 113, 46 N. W. 577. The legislature not having by ch. 

Quasi corporations such as coun- 37 '90 restricted the power of muni- 
ties, townships and school districts cipal corporations to levy taxes, pur- 
are not municipal corporations. suant to the directions of this sec- 
They are mere political subdivisions tion, a levy within the limits of the 
of the state, having the powers ex- territorial statutes then in force 
pressly granted to them and such was illegal. Henderson v. Hughes 
implied powers as are necessary to Co., 13 S. D. 576, 83 N. W. 682; 
enable them to perform their du- writ of error dismissed by U. S. Su- 
ties and no more. Twp. of Dell preme Court, 46 L. ed. 1265, 22 
Rapids v. Irving, 7 S. D. 310, 64 Sup. Ct. Rep. 939. 
N. W. 149. The term "municipal corpora- 

The city of Yankton, organized tions" in this section is used in its 

under a special territorial charter strict and proper sense and does 

did not cease to exist as a munici- not include school districts. San- 



Art. X. 



THE CONSTITUTION 



71 



ders v. Ind. Sell. Dist. 35 S. D. 48. 
150 N. W. 473. 

It is immaterial whether the 
laws applicable to one class of mu- 
nicipal corporations are applicable 
to other classes. It is sufficient if 
they are applicable to all municipal 
corporations of the same class. 
Murphy Liquor Co. v. Medbery, 35 
S. D. 5S9. 153 N. W. 654. 

The uniformity requirement of 
this section as to powers of and re- 
strictions upon, cities of the same 



class is not violated by different 
election laws for the election of 
judges of municipal courts in com- 
mission governed and non-commis- 
sion governed* cities, because of the 
express provisions of Const. Art. V 
§ 23. Rogers v. Walsh, 36 S. D. 
599, 156 N. W. 88. 

See City of Pierre v. Dunscomb, 
106 F 611. 45 C. C. A. 499; petition 
for certiorari denied 181 U. S. 621, 
45 L. ed. 1032. 21 Sup. Ct. Rep. 925. 



§ 2. Except as otherwise provided in this constitution, no 
tax or assessment shall he levied or collected, or debts contracted 
by municipal corporations, except in pursuance of law, for public 
purposes specified by law: nor shall money raised by taxation, 
loan or assessment, for one purpose ever be diverted to any other. 



It cannot be seriously contended 
that township supervisors can divert 
the funds raised and collected for 
incidental township expenses to the 
improvement of highways. Aldrich 
v. Collins, :;; S. D 15 4. 5 2 N. W. 

A judgment directing a city to 
apply, in payment of a judgment 
the balances remaining in any of 
the funds, not required for current 
expenses, does not direct a "diver- 
sion" of the public funds within the 
meaning of this section. Howard 
v. City of Huron, 6 S. D. 180, 60 
X. W. 803. 

See also Howard v. City of Huron 
et al.. 5 S. D. 539. 59 N. W. 833, 
26 L. R. A. 493. 

The provision of statute that city 
warrants are receivable for the pay- 
ment of city taxes does not limit 
the use of such warrants to the 
taxes of the particular year in which 
the warrants were drawn. The fis- 
cal affairs of each year do not stand 
out by themselves. Money raised 
in one year for municipal purposes 
is not ''diverted" by its application 
to the payment of warrants legally 
issued for municipal purposes in a 
preceding year. Western Town 
Lot Co. v Lane, 7 S. D. 1, 62 N. 
W. 982; 7 S. D. 599, 65 X. W. 17. 

Comp. L. §S 1671-1679 providing 



for registration of warrants and 
payment in the order of their regis- 
tration are in harmony with this 
section of the constitution though 
the money raised in one year is 
thereby used to pay the warrants 
of a previous year. State ex rel. 
City of Huron v. Campbell, 7 S. D. 
5 68. 6 4 N. W. 1125. 

The location of the state capital 
was a matter wholly foreign to the 
corporate purposes and object of de- 
defendant city and warrants issued 
in aid thereof were void. Shannon 
v. City of Huron, 9 S. D. 356, 69 
N. W. 598. 

"Assuming (what is extremely 
doubtful) that Art. 10 was intend- 
ed to apply to civil townships" the 
sinking of artesian wells by a town- 
ship under ch. 80 '91 and ch. 103 
'9 5 was a legitimate public purpose. 
Miles v. Benton Twp. 11 S. D. 450, 
78 N. W. 1004. 

The contraction of a debt for a 
municipal telephone system and the 
imposition of taxes therefor are for 
a lawful public purpose. Spangler 
v. City of Mitchell, 35 S. D. 335, 
152 N. W. 339. 

See City of Pierre v. Dunscomb, 
106 F 611, 45 C. C. A. 499; peti- 
tion for certiorari denied, 181 U. S. 
621. 45 L. ed. 1032, 21 Sup. Ct. 
Rep. 925. 



72 THE CONSTITUTION Art. X, § 2. 

City warrants issued for capital no liability therefor could toe creat- 

campaign purposes held void and ed. Hornblower v. City of Pierre, 

the holders thereof charged with 231 Fed. 4 9 6. 
knowledge of the law under which 

§ 3. No street passenger railway or telegraph or telephone 
line shall be constructed within the limits of any village, town 
or city without the consent of its local authorities. 

While this section limits the ferred to in the preceding note, un- 

power of the legislature it grants decided. City of Mitchell v. Dak. 

no legislative power to a municipal Cent. Tel. Co., 36 S. D. 588, 156 

council. The city has no power to N. W. 63. 

impose any conditions or establish City ordinance of Huron held a 

any regulations other than those consent to construct telephone lines 

permitted by the legislature. Mis- and as the right to maintain and op- 

souri River Tel. Co. v. City of Mit- erate the line was not derived from 

chell, 22 S. D. 191, 116 N. W. 97. the city but from the state the time 

Under this section a city is author- limit of the franchise in the ordin- 
ized to require as a condition to the ance was not effective. Dak. Cent, 
grant of a telephone franchise that Tel. Co. v. Huron, 165 P. 226. 
the company pay annually to the city The foregoing decision was over- 
ten per cent, of its gross receipts be- ruled in City of Mitchell v. Dak. Cent, 
yond a certain sum. City of Mitchell Tel. Co., 2 5 S. D. 409, noted above 
v. Dak. Cent. Tel. Co., 25 S. D. 409, and in City of Vermillion v. N. W. 
127 N. W. 582. Tel. Ex., 189 P. 289, 111 C. C. A. 21, 

Whether the legislature has the wherein the time limit of the fran- 

power to abrogate the contract re- chise was held controlling. 

ARTICLE XI. 

. REVENUE AND FINANCE . 

§ 1. The legislature shall provide for an annual tax, suf- 
ficient to defray the estimated ordinary expenses of the state for 
each year, not to exceed in any one year two mills on each dol- 
lar of the assessed valuation of all taxable property in the state, 
to be ascertained by the last assessment made for state and 
county purposes. 

And whenever it shall appear that such ordinary expenses 
shall exceed the income of the state for such year, the legislature 
shall provide for levying a tax for the ensuing year, sufficient, 
with other sources of income, to pay the deficiency of the pre- 
ceding year, together with the estimated expenses of such en- 
suing year. And for the purpose of paying the public debt, the 
legislature shall provide for levying a tax annually, sufficient to 
pay the annual interest and the principal of such debt within 
ten years from the final passage of the law creating the debt: 
provided that the annual tax for the payment of the interest and 
principal of the public debt shall not exceed in any one year two 
mills on each dollar of the assessed valuation of all taxable 
property in the state, as ascertained by the last assessment made 
for the state and county purposes. 



Art. XI. § 1 



THE CONSTITUTION 



73 



Provided, that for the purpose of establishing, installing, 
maintaining and operating a hard fiber twine and cordage plant 
at the state penitentiary at Sioux Falls, South Dakota, the legis- 
lature shall provide for a tax for the year 1907 of not to exceed 
one and one-half mills on each dollar of the assessed valuation of 
all taxable property in the state, as ascertained by the last assess- 
ment made for state and county purposes. (As amended in Nov. 
1906, pursuant to eh. 71, '05.) 



Amendments proposed by ch. 96, 
'07 and ch. 187, '09 rejected. 

Amendment proposed by ch. 23 5 
'15 to the whole of Art. 11 rejected. 

The maximum annual tax of two 
mills to defray the ordinary expen- 



ses of the state applies to the ap- 
propriations covered by the general 
appropriation bill only. In re Limi- 
tation of Taxation, 3 S. D. 456, 54 
X. W. 417. 



§ 2. All taxes shall be uniform on all property and shall be 
levied and collected for public purposes only. The value of each 
subject of taxation shall be so fixed in money that every person 
and corporation shall pay a tax in proportion to the value of his, 
her or its property. Franchises and licenses to do business in 
the state, gross earnings and net income, shall be considered in 
taxing corporations and the power to tax corporate property shall 
not be surrendered or suspended by any contract or grant to 
which the state shall be a party.. The legislature shall provide 
by general law for the assessing and levying of taxes on all cor- 
porate property, as near as may be, by the same methods as are 
provided for assessing and levying of taxes on individual prop- 
erty. (As amended Nov. 1912 pursuant to ch. 265 41.) 



Upon a charge of non-compliance 
with law in not procuring from the 
state auditor a certificate to legally 
do business within the state, the 
charge not being the non-payment 
of the specific tax upon the busi- 
ness done by the association, the 
defendant will not be heard to as- 
sert that such tax violates the uni- 
formity clause of this section of the 
constitution. State v. Morgan, 2 
S. D. 3 2. 48 N. W. 314; writ of er- 
ror dismissed 159 U. S. 261, 40 L. 
ed. 145, 15 Sup. Ct. Rep. 1041. 

Sections 18 and 19 ch. 14 '91 
relating in effect to exemption from 
taxation are in conflict with this 
section. In re Construction of 
Revenue Law, 2 S. D. 58, 48 N. W. 
813; In re Assessment & Coll. of 
Taxes. 4 S. D. 6, 54 N. W. 818. 

§ 7 ch. 72 '97 requiring the 



transmission of a portion of the 
license fees to the state treasurer is 
not a revenue measure and not re- 
pugnant to this section. The act is 
a police regulation of the liquor 
traffic imposing a license thereon 
calculated to partially prevent and 
alleviate the direful influences and 
inherent consequences of the busi- 
ness State ex rel. Grigsby v. Bue- 
chler, 10 S. D. 156, 72 N. W. 114. 

Ch. 14 '89 relating to artesian 
wells violates the uniformity re- 
quirement of this section. Turner 
v. Hand Co., 11 S. D. 348, 77 X. 
W. 589. 

The constitution does not express- 
ly or impliedly inhibit taxes on oc- 
cupations. In re Watson 17 S. D. 
486, 97 N. W. 463, 2 Ann. Cas. 321. 

Ch. 190, '03 not amended by ch. 
147, '05 nor by ch. 201, '07 in any 



74 



THE CONSTITUTION 



Art. XI, § 2. 



manner so as to affect its constitu- 
tionality. State v. Thompson, 25 S. 
D. 148, 125 N. W. 567. 

This section relates solely to pro- 
perty taxation and has no reference 
to inheritance taxes. In re McKen- 
nan's Estate, 25 S. D. 369, 126 N. 
W. 611, 33 L. R. A. (N. S.) 606. In 
re McKennan's Estate, 27 S. D. 136, 
130 N. W. 33, 33 L. R. A. (N. S.) 
620, 29 Ann. Cas. 745. 

»Ch. 65, '07 imposing an annual tax 
of 2 y 2 % on insurance companies, ex- 
cept domestic mutual companies, is 
not violative of this section, it being 
an occupation tax and does .not affect 
taxes on corporate property. Queen 
City P. I. Co. v. Basford, 27 S. D. 164, 
130 N. W. 44. 

This section and section 4 of this 
Art. recognizes no class of property 
but leave the legislature to provide 
rules of appraisement and assessment 
but .the rules need not necessarily re_ 
suit in absolute uniformity, equality 
and proportion. Sioux Falls Sav. 
Bk. v. Minnehaha Co., 29 S. D. 146, 
135 N. W. 689, 34 Ann. Cas. 910. 

Automobile Law, ch. 276, '13 does 
not impose a property tax but a tax 
for the privilege of using motor ve- 
hicles on the public highways. Ex. 
parte Hoffert 34 S. D. 271, 148 N. W. 
20, 52 L. R. A. (N. S.) 949. 

License fee imposed by Game Law, 
ch. 240, '09 is not a tax but is a li- 
cense fee for the exercise of a privi- 
lege. State v. Kirby, 34 S. D. 281, 
148 N. W. 533. 

As to the lien of personal proper- 
ty taxes upon all property of the tax 
debtor see note under § 2, Art. (), 
in Minneapolis T. M. Co. v. Roberts 
Co., 34 S. D. 498, 149 N. W. 163, 
L. R. A. 1915 D. 886. 

The provisions of § 13 ch. 206 
'13 requiring reimbursement to the 
state for moneys paid the executive 
accountant in an investigation of 
the county accounts do not amount 
to double taxation of the county. 
State v. Board of Com'rs. 36 S. D. 
606, 156 N. W. 96. 

The constitution authorizes the 
taxation of property on what is 
known as the "unit basis" whether 
owned by corporation or individual 



where such system is found neces- 
sary or expedient in order to make 
a fair assessment. The method 
provided by ch. 64 '07 for the taxa- 
tion of railroad property is valid, 
such property being given a situs 
for taxation which is based on its 
actual situs and use and which situs 
is used as a basis for distributing 
the assessed valuation for the 
purpose of local taxation. The leg- 
islature has no power to arbitrarily 
give to any property a situs for 
taxation which bears no relation to 
its actual situs, use or ownership, 
hence ch. 64 '07 as amended is un- 
constitutional in so far as it pro- 
vides for the method of assessing 
telegraph, telephone, express and 
sleeping car companies because such 
law attempts to fix the situs of such 
companies in every taxing district 
in the state for the purpose of ar- 
riving at the rate of levy regard- 
less of the actual situs use or own- 
ership. Said chapter is also uncon- 
stitutional in that while properly 
recognizing that the burdens such 
companies should bear are local to 
their actual situs the method of dis- 
tribution of the taxes is such that 
the tax is not measured by the 
value of the property in the actual 
situs but by the value of all other 
property in the actual situs. It also 
results in the situs being changed 
from year to year not because of 
any change in the actual situs but 
solely owing to changes in the pro- 
portionate distribution of other pro- 
perty. Said chapter is also uncon- 
stitutional in that the rate of levy 
as to such companies is the aver- 
age rate of levy upon all property 
for all purposes throughout all the 
taxing districts of the state "for the 
preceding year" since, though the 
inequality thus produced may be 
slight, it is one that the law com- 
pels and does not flow from de- 
fects of human judgment. For the 
same reasons last given said chap- 
ter is unconstitutional as to such 
companies in that other tax payers 
under this act and tax payers gen- 
erally are given the right to pay 
half of their taxes before April first 



Art. XI, § * 



THE CONSTITUTION 



75 



and half before November first 
while such companies are required 
to pay the whole tax before April 
first. Said chapter is not unconsti- 
tutional in that it provides a dif- 
ferent method of enforcing payment 
of such taxes than is provided for 
enforcing payment of taxes gener- 
ally. The legislature is authorized 
to enact laws for the assessment and 
taxation of property for previous 
years where it has escaped taxa- 
tion. Ewert v. Tavlor, 38 S. D. — , 
160 N. W. 797. 

Ch. 107 '89 in so far as it exempt- 
ed from taxation lands owned by a 
railroad corporation not essential to 
the discharge of its functions as a 
common carrier violated the uni- 
formity taxation provision of the 
organic law of the territory. N. P. 
Ry. Co. v. Walker, 4 7 Fed. 681; 3 
C. C. A. 684: 148 U. S. 391, 37 L. 
ed. 494. 13 Sup. Ct. Rep. 650; 153 
U. S. 25 2, 38 :.. ed. 3 73, 14 Sup. 
Ct. Rep. 809. 

§ § 16 and 17. ch. 64, '0 7 provid- 
ing for the assessment and taxation 
of railroad and other public service 
corporations are constitutional and 
valid. Wells Fargo & Co. v. Johnson, 
205 F. 60; reversed in C. C. A. 
holding that the part of § 17 ch. 64 



'0 7 which required the board to 
consider the gross earnings of ex- 
press companies in making assess- 
ments for taxation violated this 
section as it existed prior to the 
1912 amendment. Wells Fargo & 
Co. v. Johnson, 214 Fed. 180, 130 
C. C. A. 528, L. R. A. 1916C 522. 

The administration of §§ 16 and 
17 ch. 64 '07 for the taxes of 1910 
violated this section of the consti- 
tution as it existed prior to the 
1912 amendment since it appeared 
that the sums paid to railroad com- 
panies by express companies were 
the principal, if not the only, factor 
in fixing the value of the property 
of the express companies because it 
appeared that the South Dakota 
statutes other than those relating 
to railroads, telephone, telegraph, 
express and sleeping car companies 
do not authorize a valuation which 
considers gross income and that in- 
dividuals and other corporations 
are taxed according to their value 
without reference to the income de- 
rived therefrom. Johnson v. Wells 
Fargo & Co., 239 U. S. 234, 60 L. 
ed. 243, 36 Sup. Ct. Rep. 62. 

Amendment proposed by ch. 161 
'17 to be voted on Nov. 1918. 



3. The power to tax corporations and corporate property 
shall not be surrendered or suspended by any contract or grant 
to which the state shall be a party. 



If the power to tax corporations 
as well as corporate property exists 
the same power must exist as to 
natural person.- otherwise all taxa- 
tion could not be equal and uni- 
form. In re Watson. 17 S. D. 486, 
:. W. 463. 2 Ann. Cas. 321. 



This section makes a distinction 
between the power to tax corpora- 
tions and the power to tax corporate 
property. Queen City F. I. Co. v. 
Basford, 27 S. D. 164, 130 N. W. 
44. 



The legislature shall provide for taxing all moneys, 
credits, investments in bonds, stocks, joint stock companies, or 
otherwise; rind also for taxing the notes and bills discounted or 
purehased, moneys Loaned and all other property, effects or 
dues of every description, of all banks and of all bankers, so that 
all property employed in banking shall always be subject to a 
taxation eqiKil to thai imposed on the property of individuals. 



76 



THE CONSTITUTION 



Art. XI, § 4. 



Sections 18 and 19 ch. 14 '91 re- 
lating in effect to exemption from 
taxation are in conflict with this 
section. In re Construction of 
Revenue Law, 2 S. D. 58, 48 N. W. 
813: In re Assessment & Coll. of 



Taxes, 4 S. D. 6, 54 N. W. 818. 

See Sioux Palls Sav. Bk. v. Minne. 
h'aha Co., 29 S. D. 146. 135 N. W. 
689, 34 Ann. Cas. 910. 



§ 5. The property of the United States and of the state, 
county and municipal corporations, both real and personal shall 
be exempt from taxation. 



A tax deed upon land was void 
where the taxes were levied at a 
time when the title was in the 
United States ^Government, the en- 
try having been suspended. Dun- 
can v. Newcomer, 9 S. D. 375, 69 
N. W. 580. 

Under the sub. sec. now appearing 
as sub. 44 § 1229 Pol. Code a city 
could lease land for park purposes 
and could pay for its use an amount 
equal to the taxes thereon, therefore 
its exemption from taxation was not 
unlawful. Henderson v. Hughes 
Co., 13 S. D. 576, 83 N. W. 682; 
writ of error dismissed by U. S. 
Supreme Court, 46 L. ed. 1265, 22 
Sup. Ct. Rep. 939. 

Property owned by the United 
States is exempt from special assess. 
ment for local improvements. Pro- 
perty of a county, city or school dis. 



trict is not exempt from such assess- 
ment. iSuch assessment is not a tax. 
Whittaker v. City of Deadwood, 23 
S. D. 538, 122 N. W. 590, 139 Am. 
St. Rep. 1076. 

This section relates to property ex. 
enrptions and does not control a tax 
of the character imposed by inherit- 
ance tax law, ch. 54, '05. In re Mc- 
Kennan's Est., 25 S. D. 369, 126 N. 
W. 611, 33 L. R. A. (N. S.) 606. 

That property owned by a corpora. 
tion under contract with the U. S. 
was, after default in the contract, 
taken possession of by the U. S. 
and employed in the service of the 
U. S. government did not exempt it 
from taxation in the absence oif an 
Act of Congress to that effect. U. S. 
v. Moses, 185 F. 9 0. 107 C. C. A. 
310. 



§ 6. The legislature shall, by general law, exempt from 
taxation, property used exclusively for agricultural and horti- 
cultural societies, for school, religious, cemetery and charitable 
purposes, and personal property to any amount not exceeding 
in value two hundred dollars for each individual liable to taxa- 
tion. 



Our constitution requires that 
the property, not its rents and pro- 
fits, must be used for one of the 
purposes specified in this section in 
order to render it exempt from tax- 
ation. Any quantity of real pro- 
perty so situated as to be properly 
assessed as one tract or parcel un- 
der one description should be treat- 
ed as an entirety, all, or no part, of 
which is taxable. State ex rel. 
Hayes v. Board of Eq. 16 S. D. 219, 
92 N. W. 16. 

Tiiis section relates to property ex- 



emptions and does not control a tax 
of the character imposed by inherit- 
ance tax law, ch. 54. '05. In re Mc- 
Kennan's Est., 25 S. D. 369, 126 
N. W. 611, 33 L. R. A. (N. S.) 606. 
This section authorizes the ex- 
emption from taxation only of pro- 
perty that is used exclusively for 
the purposes therein enumerated. 
The mere fact that land was pur- 
chased with intent to use it at some 
time in the future is not sufficient. 
Sioux Falls Lodge v. Mundt, 37 S. 
D. , 156 N. W. 799. 



Art. XI, § 7. 



THE CONSTITUTION 



77 



§ 7. All laws exempting property from taxation, other than 
that "enumerated in sections 5 and 6 of this article, shall be void. 



§§ 18 and 19 ch. 14 '91 allowing 
a deduction of indebtedness from 
the item of credits in listing credits 
for taxation are virtually laws of 
exemption from taxation and violate 
the constitution. In re Construction 
of Revenue Law. 2 S. D. 58, 48 X. 
W. 813; In re Assessment & Coll. 
of Taxes, 4 S. D. 6. 54 X. W. 818. 

The exemption from taxation of 
the property of the Pierre Water- 
works Co. was undoubtedly unau- 
thorized, but regarding it as an 
honest mistake of law the validity 
of the taxes was not affected by 
such exemption. Henderson v. 
Hughes Co.. 13 S. D. 576, 83 N. W. 
68 2; writ of error dismissed by U. 
S. Supreme Court. 46 L. ed. 1265. 
22 Sup. Ct. Rep. 939. 

§ 2149 Pol. Code does not violate 
this section since its effect is sim- 
ply to place the consequences of the 



treasurer's failure to perform his 
duty upon that officer where they 
properlv belong. Harris v. Stearns, 
20 S. D. 622, 108 N. W. 247. 

Inheritance tax law, ch. 54, '05 is 
not void because making exemptions 
other than allowed by this section. 
This section relates exclusively to 
property exemptions and does not 
control a tax of the character im- 
posed by the inheritance tax law, 
which is a tax upon the transmission 
of property. In re McKennan's Est., 
25 S. D. 369, 126 N. W. 611, 33 L. 
R. A. (N. S.) 606. 

This section is not violated by ch. 
65, '07 as it was not the intention of 
the legislature in imposing an occu- 
pation tax to exempt the property of 
the corporation from taxation. Queen 
City P. I. Co. v. Basford, 2 7 S. D. 
164, 130 N. W. 44. 



§ 8. No tax shall be levied except in pursuance of a law, 
which shall distinctly state the object of the same, to which the 
tax only shall be applied. 



It is within the power of the leg- 
islature by a law passed by two 
thirds of the members of each 
house to direct the levy of a tax 
for the purpose of meeting any 
valid proper and reasonable extra- 
ordinary expense which commends 
itself to their good judgment. The 
law providing for such tax must 
clearly and distinctly state its ob- 
ject and the tax so raised cannot be 
diverted to any other use. In re 
Limitation of Taxation. 3 S. D. 456, 
5 4 X. W. 417. 

When a city levies a tax for 
municipal purposes not exceeding 
10 mills on the dollar it does so 
by authority of law and the object 
is distinctly stated, namely, muni- 
cipal purposes. This section does 
not contemplate a specific tax for 
one designated municipal purpose 
and a specific tax for another, etc. 
Warrants legally issued for muni- 
cipal purposes in a preceding year 



are receivable in payment for taxes 
for municipal purposes of a subse- 
quent year. Western Town Lot Co. 
v. Lane, 7 S. D. 1, 62 N. W. 982; 
7 S. D. 599, 65 N. W. 17. 

A charge of the nature imposed by 
inheritance tax law, ch. 54, '05 is a 
tax upon the transmission of proper- 
ty and is not dependent for its valid- 
ity upon the right to regulate the 
succession of property. In re Mc- 
Kennan's Est., 25 6. D. 369, 126 N. 
W. 611, 33 L. R. A. (N. S.) 606. 

Funds created under subsections 3 
and 7 of § 2137 Pol. 'Code can be 
used only on roads located by state 
or county authority. Hughes v. Board, 
25 S. D. 480, 127 N. W. 613. 

Assuming ithat .the peddler's license 
law, ch. 190, '03 as amended by ch. 
147, '05 and ch. 201, '07 provides for 
an occupation tax, such tax is levied 
in pursuance of law and the law dis- 
tinctly states the object of the same 
by providing that it shall be covered 



78 



THE CONSTITUTION 



Art. XI, § 8. 



into the county general fund for the 
use of the county. State v. Thomp- 
son, 25 S. D. 148, 1-25 N. W. 567. 
The retaining by a county of a por- 
tion of the taxes belonging to a city 
would violate this section. City of 



Centerville v. Turner Co., 25 S. D. 
300, 126 N. W. 605. 

License fee imposed by Game Law, 
ch. 240, '09 is not a tax but a license 
fee for the exercise of a privilege. 
State v. Kirby, 34 S. B. 281, 148 N. 
W. 533. 



§ 9. All taxes levied and collected for state purposes shall 
be paid into the state treasury. No indebtedness shall be incur- 
red or money expended by the state, and no warrant shall be 
drawn upon the state treasurer except in pursuance of an ap- 
propriation for the specific purpose first made. The legislature 
shall provide by suitable enactment for carrying this section into 
effect. 

A special assessment for local im- 
provements is not taxation. Winona 
& St. P. Ry. Co. v. City of Water- 
town, 1 S. D. 46, 44 N. W. 1072. 

Where, at the time demand was 
made for payment of a claim for 
salary, the appropriation therefor 
had been exhausted the state audi- 
tor could not draw his warrant for 
more. Collins v. State, 3 S. D. 18, 
51 N. W. 776. 

The portions of ch. 9 9 '91 relat- 
ing to contracts for public printing 
to be done in the future are not 
void because no appropriation has 
been made therefor. Such contracts 
do not create an indebtedness again- 
st the state but merely determine 
who shall do, and at what prices, the 
work that may thereafter be deter- 
mined by the legislature. This pro- 
vision was never intended to prevent 
the legislature from immediately au- 
thorizing the incurring of an in- 
debtedness in the current and us- 
ual administration of state affairs. 
Carter v. Thorson, 5 S. D. 474, 59 
N. W. 469; 24 L. R. A. 734, 49 
Am. St. Rep. 893. 

A claim for subsistence of troops 
called out by order of the Governor 
to suppress the Sioux Indian out- 
break of 1890 cannot be enforced in 
the courts, because no appropria- 
tion had been made therefor, the 



remedy is with the legislature under 
the proviso in Art. 12 § 3. Stan- 
ton v. State, 5 S. D. 515, 59 N. W. 
738. 

The legal liability of the state de- 
pends upon the question of author- 
ity in its agents when plaintiff de- 
livered its coal to the college and 
not upon the condition of the par- 
ticular fund, out of which it was 
payable, as shown by the auditor's 
books when the claim was pre- 
sented. Van Dusen v. State, 11 S. 
D. 318, 77 N. W. 201. 

As the State Constitution does not 
define an appropriation, held that the 
following Acts contained Talid ap- 
propriations though not in fixed sums, 
viz: ch. 167, '07; ch. 210, 240 and 
296, '09; ch. 256, '11; ch. 226, 267 
and 332, '13. State ex rel. Longstaff 
v. Anderson, 33 S. D. 574, 146 N. W. 
703. See State v. Kirby, 34 S. D. 
281, 148 N. W. 533. 

The clause "no indebtedness shall 
be incurred * * * except in pursu- 
ance of an appropriation for the spe- 
cific purpose first made" must he 
read and construed with the provisos 
in Art. 12 § 3 and Art. 13 § 1. So 
construed ch. 51 '17 is not invalid 
because no appropriation was first 
made. State ex rel. Morris v. Hand- 
lin, 38 S. D. — . 162 N. W. 379. 



§ 10. The legislature may vest the corporate authority of 
cities, towns and villages, with power to make local improve- 
ments by special taxation of contiguous property or otherwise. 



Art. XI. § 10. 



THE CONSTITUTION 



79 



For all corporate purposes, all municipal corporations may be 
vested with authority to assess and collect taxes; but such tax 
shall be uniform in respect to persons and property within the 
jurisdiction of the body levying the same. 



The improvement of street inter- 
sections may be charged to the 
abutting property. Brandhuber v. 
City of Pierre, 21 S. D. 447, 113 
X. W. 5 69; or the cost thereof may 
be paid out of the general fund of 
the city, but after advising property 
owners that the cost thereof would 
not be included in the assessment 
against the abutting property it was 
beyond the power of the city to so 
include it. State ex rel, Bowen v. 
Board of Com'rs 25 S. D. 3, 124 
X. W. 9 63. 

Under this provision it is clear 
that the power of the legislature to 
vest municipalities with authority to 
make local improvements and to pay 
for the same by special taxation of 
the contiguous property or otherwise 
is plenary except as limited by other 
provisions of the Constitution. Bailey 
v. City of Sioux Falls, 28 S. D. 118, 
132 X. W. 703. 

The first sentence is controlled by 

§ 11. The making of profit, directly or indirectly, out of 
state, county, city, town or school district money, or using the 
same for any purpose not authorized by law, shall be deemed a 
felony and shall be punished as provided by law. 



Art. 6, § 17. The requirements of 
equality and uniformity are met when 
special taxes or assessments are uni- 
form as to property and in propor- 
tion to benefits, but this right to levy 
special assessments is also controlled 
by Art. 6, § 13. The latter clause 
of the second sentence refers only to 
taxes levied for general corporate 
purposes and not to the special taxes 
or assessments included in the first 
sentence. Haggart v. Alton, 2 9 S. 
D. 509, 137 N. W. 372. 

It is within the power of the leg- 
islature to create special taxing dis- 
tricts and to charge the cost of a 
local improvement in whole or in 
part upon the property in said dis- 
trict either according to valuation 
or superficial area or frontage. 
Webster v. City of Fargo, 181 U. S. 
394, 45 L. ed. 912, 21 Sup. Ct. Rep. 
623, affirming 9 X. D. 208, 82 N. 
W. 732. 



by law. Allibone v Ames, 9 S. D. 
74. 68 N. W. 165, 33 L. R. A. 585. 



A general deposit in a bank by a 
county treasurer of county funds 
subject to check was not prohibited 

§ 12. An accurate statement of the receipts and expendi- 
tures of the public moneys shall be published annually, in such 
manner as the legislature may provide. 

ARTICLE XII. 

PUBLIC ACCOUNTS AND EXPENDITURES 

§ i. No money shall be paid out of the treasury except upon 
appropriation by law and on warrant drawn by the proper of- 
ficer. 

See note under § 9, Art. 11, as to to agree to hold the license fee re- 

what constitutes an appropriation. rjuired of an itinerant physician 

It was clearly beyond the power pending appeal to the supreme court 

of the Board of Medical Examiners and subject to the decision of that 



80 



THE CONSTITUTION 



Art. XII, § 1. 



court since the statute requires all 
moneys received by the board to be 
paid to the state treasurer and 
credited to the general fund. After 



it has been so deposited it can only 
be withdrawn by warrant pursuant 
to an appropriation. Longstaff v. 
State, 35 S. D. 136, 150 N. W. 1100. 



§ 2. The general appropriation bill shall embrace nothing 
but appropriations for ordinary expenses of the executive, leg- 
islative and judicial departments of the state, the current ex- 
penses of state institutions, interest on the public debt, and for 
common schools. All other appropriations shall be made by 
separate bills, each embracing but one object, and shall require a 
two-thirds vote of all the members of each branch of the legis- 
lature. 

The "other appropriations" which 
are required to be passed by a two 
thirds vote are not within the two 
mills tax levy limitation. In re 
Limitation of Taxation, 3 S. D. 456, 
54 N. W. 417. 

Defendant charged with hunting 
without a license is not in his capac- 

§ 3. The legislature shall never grant any extra compensa- 
tion to any public officer, employee, agent or contractor after the 
services shall have been rendered or the contract entered into, 
nor authorize the payment of any claims or part thereof created 
against the state, under any agreement or contract made without 
express authority of law, and all such unauthorized agreements 
or contracts shall be null and void; nor shall the compensation 
of any public officer be increased or diminished during his term 
of office; Provided, however, that the legislature may make ap- 
propriations for expenditures incurred in suppressing insurrec- 
tion or repelling invasion. 



ity as a law breaker concerned with 
the question as to whether ch. 240, 
'09 containing an appropriation of 
money was passed by two thirds of 
each branch of the legislature. State 
v. Kirby, 34 S. D. 281, 148 N. W. 
533. 



Under ch. 45 '85 held that the 
salary of the district attorney could 
not be diminished during the term 
for which he was elected. Polk v. 
Minnehaha Co., 5 Dak. 129, .37 N. 
W. 93. 

The continuance under the con- 
stitution of the office of veterinary 
surgeon established under territor- 
ial statute left the office without 
any fixed term. The legislature of 
the state could therefore reduce the 
compensation without violating any 
legal or moral obligation. Collins 
v. State, 3 S. D. 18, 51 N. W. 776. 

The provision against changing 
the compensation of a public officer 
during his term of office has no ap- 
plication to an appointive officer who 



simply holds office at the pleasure 
of the appointing power. Such of- 
ficer has no term of office within 
the meaning of this provision. The 
word "term" refers to the office and 
not to the officer. Whether this 
provision relates to other than con- 
stitutional offices, undecided. Som- 
ers v. State, 5 S. D. 321, 58 N. W. 
804; 5 S. D. 584, 59 N. W. 962. 

The makers of the constitution, 
having determined to protect the 
state against liability on "agree- 
ments or contracts made without 
express authority of law," by whom- 
soever attempted, used general and 
strongly prohibitive terms; but, fore- 
seeing that emergent cases might 
arise, in which there was no legal 



Art. XII, § 3. 



THE CONSTITUTION 



81 



claim, because no authorized con- 
tract, but still meritorious, except- 
ed from the sweep of such prohi- 
bition "expenditures incurred in 
suppressing insurrection or repel- 
ling invasion*' but. only to the ex- 
tent of submitting the same to the 
legislature (not the courts) and al- 
lowing it upon its judgment to ad- 
just and make appropriation there- 
for. Stanton v. State. 5 S. D. 515, 
59 N. W. 738. 

Ch. S6 '03 terminated the term 
of office of the former board of 
charities and corrections hence the 
increase of salary to the new board 
was not an increase during their 
term of office. Thomas v. State. 17 
S. D. 579, 97 N. W. 1011. 

The words "public officer" evi- 
dently refer to such state officers as 
are provided for by the constitution 
who would draw their salaries from 
the state treasury and do not in- 
clude the countv judge. Hauser v. 
Seeley. 18 S. D. 308, 100 N. W. 437. 

It could not be presumed that the 
Capitol Commission would exceed its 



authority hence plaintiff was not 
entitled to a writ of prohibition. 
Should the Commission enter into 
an unauthorized contract no tax- 
payer would suffer injury because 
such unauthorized contract would 
be null and void. Davenport v. El- 
rod, 20 S. D. 567, 107 N. W. 833. 

A contract between the state and a 
corporation of which a member of the 
legislature was president and stock- 
holder, authorized by an Act of the 
legislature passed during the term 
for which he was elected, being pro- 
hibited by § 12, Art. 3, is void as 
being made without express authority 
of law. Norbeck & N. Co. v. State, 
32 S. D. 189. 142 N. W. 847, 39 
Ann. Cas. 2 2 9. 

Looking at the substance and gen- 
eral spirit of the situation any as- 
sault upon the government of the U. 
S. by insurrection or invasion is also 
an assault against each and every 
state government in the union. State 
ex rel. Morris v. Handlin. 3 8 S. D. 
— , 16 2 N. W. 3 79. 



§ 4. An itemized statement of all receipts and expenditures 
of the public moneys shall be published annually in such man- 
ner as the legislature shall provide, and such statement shall be 
submitted to the legislature at the beginning of each regular ses- 
sion by the governor with his message. 

ARTICLE XIII. 

PUBLIC INDEBTEDNESS 

§ 1. Neither the state nor any county, township or munici- 
pality shall loan or give its credil or make any donations to or in aid 
of any individual association or corporation except for the neces- 
sary support of the poor, nor subscribe to or become the owner 
of the capital stock of any association or corporation, nor pay or 
become responsible for the debt or liability of any individual, as- 
sociation or corporation; provided, that the state may assume or 
pay such debi or liability when incurred in time of war for the 
defense of the state: provided; further that the slate or any 
county or two or more counties jointly may establish and main- 
lain a system of rural credits and thereby loan money and extend 
credit to the people of this state upon real estate security in such 
manner and upon such terms and conditions as may be ])v<'- 
Bcrihed by general law. Nor shall the state engage in any work 
of internal improvement. 



82 



THE CONSTITUTION 



Art. XIII, § 1. 



(As amended Nov. 1916 pursuant 
to ch. 233 '15. The second pro- 
viso is new.) 

The acceptance and compliance 
with the terms of ch. 53 '87 relat- 
ing to fire departments constitute a 
valid consideration for legislative 
appropriation. Such an appropria- 
tion is not a "donation" within the 
meaning of the constitutional pro- 
hibition but it is an appropriation 
for a proper governmental and 
public purpose. Cutting v. Taylor, 
3 S. D. 11, 51 N. W. 949, 15 L. R. 
A. 691. 

The engaging by a city in the 
business of a municipal telephone 
system provided for in ch. 88 '07 is 
not the engaging in such business 
by the state. Such business is a 
lawful subject for municipal taxa- 
tion. Spangler v. City of Mitchell, 
35 S. D. 335, 152 N. W. 339. 

Even if the word corporation in 
this section refers to a public cor- 
poration § 13 ch. 206 '13 does not 
amount to loaning or giving the 
state's credit to a county. State v. 
Board of Com'rs 36 S. D. 606, 156 
N. W. 96. 

This section is not violated by § 
2 ch. 245 '09 which renders a pub- 
lic corporation liable to pay for 
material or labor furnished upon 
its building in case it shall fail to 
require the bond specified in § 1 of 
said chapter, Handelan v. Smee 



Sch. Dist. 38 S. D , 159 N. W. 

888. 

The provisions of this section pro- 
hibit the legislature from donating 
money for private enterprises and 
for prohibited internal improvements 
but were never intended to prohibit 
the legislature from making appro- 
priations for the purpose of self pres- 
ervation. Ch. 51 '17 was not a do- 
nation within the meaning of this 
section. State ex rel. Morris v. 
Handlin, 38 S. D. — , 162 N. W. 379. 

Rural credits acts, ch. 333 and 
33 4 '17 do not conflict with the pro- 
visions of the next section and are 
constitutional. There is no limita- 
tion on the amount of money that 
may be borrowed by the Rural Cred- 
its Board on the good faith and 
credit of the state under the provi- 
sions of said acts. In re Opinion of 
Judges, 3 8 S. D. — , 162 N. W. — . 

Act of North Dakota legislature 
validating void county contracts 
held not repugnant to the clause of 
the N. D. Const, which forbids the 
state or any county to make dona- 
tions to or in aid of any individual, 
association, or corporation. Ers- 
kine v. Steele Co. 87 Fed. 630; af- 
firmed in Steele Co. v. Erskine, 98 
Fed. 215, 39 C. C. A. 173. 

Amendments proposed by ch. 162 
and 163 '17 to be voted on Nov. 
1918. 



§ 2. For the purpose of defraying extraordinary expenses 
and making public improvements, or to meet casual deficits or 
failure in revenue, the state may contract debts never to exceed 
with previous debts in the aggregate $100,000, and no greater in- 
debtedness shall be incurred except for the purpose of repelling 
invasion, suppressing insurrection, or defending the state or the 
United States in war and provision shall be made by law for the 
payment of the interest annually, and the principal when due, by 
tax levied for the purpose or from other sources of revenue; 
which law providing for the payment of such interest and prin- 
cipal by such tax or otherwise shall be irrepealable until such 
debt is paid; Provided, however, the State of South Dakota shall 
have the power to refund the territorial debt assumed by the 
State of South Dakota, by bonds of the State of South Dakota. 



Art. XIII. § 2. 



THE CONSTITUTION 



83 



(Amendment proposed by ch. 43, 
'90 rejected. See notes under Art. 
23). 

An appropriation from the assess- 
ed, but not yet collected revenues of 
the state and the issuance of war- 
rants in pursuance and in evidence 
thereof is not the incurring of an 
indebtedness within the meaning of 
this section because payment is le- 
gally provided for by funds con- 
structively in the treasury. In re 
State Warrants, 6 S. D. 518, 62 
X. W. 101. 55 Am. St. Rep. 852. 

The limit of indebtedness fixed by 
this section does not apply to a 
debt due from the state to the 
school fund arising from the de- 
falcation of the state treasurer, be- 
cause excepted herefrom by Const. 
Art. 8 §§ 2. 3 and 13 and the leg- 
islature may authorize an issue of 
bonds for the purpose of raising 
funds to make good such loss. In 
re State Bonds. 7 S. D. 42, 6 3 X. W. 
223. 



Answering the Governor's inquiry 
as to rural credits acts. ch. 333 and 
33 4 '17. the majority of the judges 
were of the opinion that the indebt- 
edness contemplated by this section 
does not include any pecuniary obli- 
gation imposed by contract which, 
within the lawful and reasonable 
contemplation of the parties thereto. 
is to be satisfied out of the current 
revenues for the year or out of some 
fund then within the immediate con- 
trol of the state, and were therefore 
of the opinion that said acts did not 
contemplate the incurring of indebt- 
edness within the meaning of this 
section although the faith and credit 
of the state are to be behind the ob- 
ligations to be issued to obtain funds 
for loaning. The minority of the 
judges were of the opinion that the. 
debt limit of this section was re- 
pealed by implication by the rurai 
credits amendment in the preceding 
section for the purposes of such 
amendment. In re Opinion of Judges. 
3S S. D. — .162 N. W. — . 



^ 3. That the indebtedness of the State of South Dakota 
limited by section two of this article shall be in addition to the 
debt of the Territory of Dakota assumed by and agreed to be 
paid by South Dakota. 

§ 4. The debt of any county, city, town, school district, civil 
township, or other sub-division, shall never exceed five (5) per 
centum upon the assessed valuation of the taxable property 
therein, for the year preceding that in which said indebtedness is 
incurred, in estimating the amount of the indebtedness which a 
municipality or subdivision may incur, the amount of indebted- 
ness contracted prior to the adoption of the constitution shall be 
included; 

Provided. That any county, municipal corporation, civil 
township, district, or other sub-division may incur an additional 
indebtedness, not exceeding ten per centum upon the assessed 
valuation of the taxable property therein, for the year preceding 
that in which said indebtedness is incurred for the purpose of 
providing water and sewerage, for irrigation, domestic uses, sew- 
erage and other purposes, and 

Provided, further. That in a city where the population is 
8,000 or more, such city may incur an indebtedness not exceeding 
eight per centum upon the assessed valuation of the taxable pro- 



THE CONSTITUTION 



Art. XIII, § 4. 



perty therein for the year next preceding that in which said in- 
debtedness is incurred for the purpose of constructing street 
railways, electric lights, or other lighting plants. 

Provided, further, That no county, municipal corporation, 
cwil township, district or sub-division, shall be included within 
such district or sub-division without a majority vote in favor 
thereof of the electors of the county, municipal corporation, civil 
township, district or other sub-division, as the case may be which 
is proposed to be included therein, and no such debt shall ever 
be incurred for any of the purposes in this (section provided; un- 
less authorized by a vote in favor thereof by a majority of the 
electors of such county, municipal corporation, civil township, 
district or sub-division incurring the same. 



(As amended Nov. 1902 pursuant 
to ch. 89, '01.) This section was pre- 
viously amended in Nov. 1896, pursu- 
ant to oh. 35, '05.. An lamendment 
proposed by ch. 13 9, '09 was reject- 
ed. 

Upon mandamus proceedings to 
enforce the payment of a judgment 
rendered against a city by default it 
may not avail itself of the defense 
that the debt for which judgment 
was rendered was incurred in ex- 
cess of the constitutional limit. 
Howard v. City of Huron, 6 S. D. 
180, 60 N. W. 803. 

City warrants issued for a cur- 
rent municipal purpose after the 
limit of indebtedness has been 
reached are valid where issued in 
anticipation of a tax already levied 
of which more than enough remain- 
ed unappropriated to cover the 
amount of such warrants. Shannon 
v. City of Huron, 9 S. D. 356, 69 
N. W. 598. 

The value of the taxable property 
and the amount of existing indebt- 
edness are two facts of which all 
the world is bound to take notice 
and as to which a city cannot be 
concluded by any recital in the 
bonds. The issue of funding bonds 
should not be regarded as creating 
any new or additional indebtedness 
within the meaning of this section. 
Nat. Life Ins. Co. v. Mead, 13 S. D. 
37, 82 N. W. 78, 79 Am. St. Rep. 
876, 48 L. R. A. 785; 13 S. D. 342, 
83 N. W. 335. 

In determining the indebtedness 



of a city, that of a school corpora- 
tion having the .same boundaries is 
not to be considered. There is no 
increase of the debt of a city, with- 
in constitutional prohibitions, by 
the issue of bonds where they are 
exchanged at par for an equal or 
greater amount of pre-existing le- 
gal bonds bearing greater interest. 
Hyde v. Ewert, 16 S. D. 133, 91 N. 
W. 474; Ewert v. Mallery. 16 S. D. 
151, 91 N. W. 479. 

Where county warrants, proposed 
to be exchanged for bonds, were is- 
sued within the limits of the tax 
levies for the respective years they 
were legal warrants. The fact that 
the county board compromised and 
struck uncollectible taxes from the 
tax roll could not affect the war- 
rants theretofore issued. Such 
warrants are not to be counted as 
a part of the county debt within 
the meaning of the five per cent 
limit and the bonds issued to re- 
fund the warrants did not increase 
the indebtedness. Walling v. 
Lummis, 16 S. D. 349, 92 N. W. 
1063. 

This section as it existed after 
the 1896 amendment authorized an 
indebtedness of ten per cent for 
water regardless of existing indebt- 
edness. Wells v. City of Sioux 
Falls, 16 S. D. 547, 94 N. W. 425. 

A resolution by a city for thei pur. 
chase of boilers which contemplates 
that it will contract for their pur- 
chase; that an appropriation therefor 
shall ibe made at a future time; that 



Art. XIII 



THE CONSTITUTION 



85 



they are not to be paid for until ap- 
propriation made and that seller will 
receive no warrant or money and 
that city does not obligate itself to 
pay until appropriation is made does 
not create a debt, within the mean- 
ins: of this section. Taxpayer seek- 
ing relief from such resolution does 
not suffer irreparable injury by de- 
nial of temporary injunction. Bailey 
v. City of Sioux Falls, 19 S. D. 231, 
103 X. W. 16. 

A majority of those voting is not 
sufficient under this section, a ma- 
jority of all of the electors is re- 
quired. Money in the sinking fund 
should be deducted from the in- 
debtedness in order to determine the 
financial condition of a city. Wil- 
liamson v. Aldrich, 21 S. D. 13, 
X. W. 1063. 

I- was held that there was no dis- 
tinction between the clause of this 
section and the corresponding clause 
in § 2856 Pol. Code as amended by 
ch. 166, '03 by which the majority ia 
determined: but it will be noticed 
that in the quotation in the opinion 
from this section the word used was 
"voters" instead of "electors" as ap- 
pears in the Constitution. State ex 
rel. Clark v. Stakke. 22 S. D. 228, 
117 X. W. 129. 

Under this section as in force in 
190 7 courts will presume that all 
electors failing to vote at an election 
assent to the prevailing vote. A 
municipal taxpayer cannot show by 
the registry* list or by witnesses that 
qualified voters failed to vote at 
an election in order to prove that a 
majority failed to vote in favor of 
the proposition. Treat v. DeJean, 
22 S. D. 505, 118 X. W. 709. 

Under this section as originally 
adopted if the existing debt of a 
township equaled or exceeded the 
limit when township bonds were is- 
sued to construct artesian wells the 
bonds were void: but if the debt was 
less than the limit the bond holder 
could recover the difference as for 
money had and received. Dring v. 
St. Lawrence Twp.. 23 S. D. 624, 
122 X. W. 664. 

A tax levy in process of collection 
may be deducted from the indebted- 



ness incurred by a school district in 
estimating whether it has exceeded 
its debt limit. McCavick v. Ind. Sen. 
Dist., 25 S. D. 449, 127 N. W. 476. 

A void claim cannot be considered 
in determining whether the constitu- 
tional debt limit of a township has 
been exceeded. To the extent that 
money advanced to a township on an 
invalid bond issue was used to pay 
an existing indebtedness for artesian 
wells sunk pursuant to the bond is- 
sue such loan did not increase the 
debt. Dring v. St. Lawrence Twp., 
31 S. D. 197, 140 N. W. 246. 

This section has no application to 
an indebtedness incurred within the 
five per cent limit, therefore a city 
may. without a vote of the electors, 
incur indebtedness within the five 
per cent limit for a lawful pur- 
pose, but because of § 1229 Pol. 
Code, sub. 5 it may not issue bonds 
without such vote. Spangler v. 
City of Mitchell, 35 S. D. 335, 152 
N. W. 339. 

It is only after the constitutional 
debt limit has been reached that 
current expenses of a county must 
be kept within the current tax levy 
or revenues for that year. State 
v. Board of Com'rs., 36 S. D. 606, 
156 N. W. 96. 

Municipal bonds issued when the 
debt of the municipality exceeded 5 
per cent, of the assessed valuation are 
illegal. John Hancock M. L. I. Co. 
v. City of Huron, 80 F. 65 2 (affirm- 
ed in 100 F. 1001, 40 C. C. A. 683.) 

That the corporation has diverted 
the proceeds of the bonds to an un- 
lawful purpose is no defense to an 
action by an innocent purchaser. 
Bonds issued to fund a valid debt 
do not create a debt but merely 
change its form. City of Huron v. 
2nd Ward Sav. Bk., 8 6 F. 272, 30 
C. C. A. 38. 

The Board of Education of Huron 
is a body corporate independent of 
the City of Huron and in determining 
the debt 1'mit of the former the debts 
of the latter are not to be comput- 
ed. Board of Ed. v. Nat. Life Ins. 
Co.. 94 F. 324. 36 C. C. A. 278. 

City warrants are not negotiable 
instruments and are subject to de- 



86 



THE CONSTITUTION 



Art. XIII, 



fenses available against the origi- 
nal payee. Wilson v. City of Hu- 
ron, 97 Fed. 449, 38 C. C. A. 264. 
Followed in Hornblower v. City of 
Pierre, 231 Fed. 496, where war- 
rants were held to have been is- 
sued in excess of the constitutional 
debt limit. 

As to estoppel by recitals in bonds 
and that funding bonds create no 
debt see Hughes Co. v. Livingston, 
104 F. 306, 43 C. C. A. 541, and 
City of Pierre v. Dunscomb, 106 F. 
611, 45 C. C. A. 499. 

The amendment of 1902 does not 
apply to an issue of bonds authoriz- 
ed by a vote of a city held prior to 
the adoption of the amendment. The 
word "additional" means additional 
to 5 per cent., not additional to ex- 
isting debt. Farmers L. T. Co. v. 
City of Sioux Falls, 131 F. 890, but 
see 'City of iSioux Falls v. Farmers L. 
& T. Co., 136 F. 721, 69 C. C. A. 
373, where on appeal it was held that 
because respondents rights were ac- 
quired by a municipal contract prior 
to the adoption of the constitution 
and not by virtue of any constitu- 
tional provisions they were not en- 



titled to the independent judgment 
of the federal courts in construing 
this section. 

Purchaser of bonds is bound to as- 
certain the amount of the assessed 
valuation. Certain recitals therein 
held not to protect purchaser. St. 
Lawrence Twp. v. Furman, 171 F. 
400, 96 C. C. A. 356. 

A municipal corporation which de- 
nies liability on a contract on the 
ground of the debt limit has the 
burden of proof to establish such fact. 
Quackenbush v. City of Yankton, 186 
F. 991, 108 C. C. A. 661. 

The question whether warrants 
exceeded the constitutional or statu- 
tory debt limit was not left to the 
municipal officers but the facts from 
which the question was to be deter- 
mined were required to be made a 
matter of public record open to the 
inspection of all persons which 
records disclosed the extent of the 
issue and therefore no estoppel can 
be predicated upon recitals by the 
officers of the city to the contrary. 
Hornblower v. City of Pierre, 231 
Fed. 496. 



§ 5. Any city, county, town, school district or any other 
sub-division incurring indebtedness shall, at or before the time 
of so doing, provide for the collection of an annual tax sufficient 
to pay the interest and also the principal thereof when due, and 
all laws or ordinances providing for the payment of the interest 
or principal of any debt shall be irrepealable until such debt be 
paid. 



This section is mandatory and 
self-executing. The failure of the 
board to comply with it does not 
have the effect to relieve it from 
its obligations and constitutes no 
defense to an action upon its bonds 
issued under authority of law. Wil- 
son v. Board of Ed. 12 S. D. 535, 
81 N.. W. 952. 

The first word "any" of this sec- 
tion means "every" and so includes 
cities under special charter. Hey- 
ler v. City of Watertown, 16 S. D. 
25, 91 N. W. 334. 

In counties having . bonded in- 
debtedness sinking funds cannot 



be dispensed with because they 
were provided for and became a 
part of the contract when the in- 
debtedness was created. F. E. & 
M. V. Ry. Co. v. Pennington Co., 20 
S. D. 270, 105 N. W. 929. 

Under this section the legislature 
has no power to so limit sinking 
fund levies in a county as to abro- 
gate any law or ordinance provid- 
ing for the payment of the inter- 
est or principal of its bonded debt 
or to so limit such levies as to pre- 
vent the county from collecting an 
annual tax to pay the interest there- 
on and also the principal thereof 



Art. XIII. § 5. THE CONSTITUTION 87 



when due. F. E. & M. V. Ry. Co. Life Ins. Co. v. Board of Ed., 62 P. 

v. County of Pennington, 2 2 S. D. 7 7 8, 10 C. C. A. 637. 

20 2, 116 N. W. 7 5. Recitals in a bond held to import 

that the levy to pay interest and 

Non-compliance with this section principal had been made. Hughes Co. 

by a Board of Education is not avail- v. Livingston, 104 P. 306, 43 C. C. A. 

able as a defense to the bonds as 541. See also City of Pierre v. Duns- 

against bona fide purchasers. Nat. comb, 106 F. 611, 45 C. C. A. 499. 

§ 6. Iii order thai paymeni of the debts and liabilities 
contracted or incurred by and in behalf of the Territory of Da- 
kota may be justly and equitably provided for and made, and in 
pursuance of the requirements of an act of congress approved 
February 22, 1889. entitled "An act to Provide for the Division of 
Dakota into two states and to Enable the People of North Dakota, 
South Dakota. Montana and Washington to form Constitutions 
and State Governments and to be Admitted into the Union on an 
Equal Footing with the Original States, and to Make Donations of 
Public Lands to such States" the States of North Dakota and 
South Dakota, by proceedings of a Joint Commission, duly ap- 
pointed under said act. the sessions whereof were held at Bis- 
marck in said State of North Dakota, from July 16, 1889, to July 
31. 1889, inclusive, have agreed to the following adjustment of 
the amounts of the debts and liabilities of the Territory of Dakota 
which shall be assumed and paid by each of the States of North 
Dakota and South Dakota, respectively, to-wit: 

1. This agreement shall take effect and be in force from 
.and after the admission into the Union, as one of the United 
States of America, of either the State of North Dakota or the 
State of South Dakota. 

2. The words "State of North Dakota" wherever used in this 
agreement, shall be taken to mean the Territory of North Dakota, 
in case the State of South Dakota shall be admitted into the 
Union prior to the admission into the Union of the State of North 
Dakota: and the words "State of South Dakota," wherever used 
in this agreement, shall be taken to mean the Territory of South 
Dakota in case the State of North Dakota shall be admitted into 
the Union prior. to the admission into the Union of the State of 
South Dakota. 

3. The said State of North Dakota shall assume and pay all 
bonds issued by the Territory of Dakota to provide funds for the 
purchase, construction, repairs or maintenance of such public in- 
stitutions, grounds or buildings as are located within the boun- 
daries of North Dakota, and shall pay all warrants issued under 
and by virtue of that certain act of the Legislative assembly of 
the Territory of Dakota, approved March 3, 1889, entitled An Acl 



THE CONSTITUTION Art. XIII, § 6, 



to provide for the refunding of outstanding warrants drawn on 
the capitol building fund. 

4. The said State of South Dakota shall assume and pay all 
bonds issued by the Territory of Dakota to provide funds for the 
purchase, construction, repairs or maintenance of such public 
institutions, grounds or buildings as are located within the 
boundaries of South Dakota. 

5. That is to say: The State of North Dakota shall assume 
and pay the following bonds and indebtedness, to-wit: Bonds is- 
sued on account of the hospital for insane at Jamestown, North 
Dakota, the face aggregate of which is two hundred and sixty-six 
thousand dollars ; also bonds issued on account of the North Da- 
kota University at Grand Forks, North Dakota, the face aggre- 
gate of which is ninety-six thousand seven hundred dollars; also, 
bonds issued on account of the penitentiary at Bismarck, North 
Dakota, the face aggregate of which is ninety-three thousand six 
hundred dollars; also refunding capitol building warrants dated 
April 1, 1889, eighty-three thousand five hundred and seven 
dollars and forty-six cents. 

And the State of South Dakota shall assume and pay the fol- 
lowing bonds and indebtedness, to-wit: Bonds issued on account 
of the Hospital for the Insane at Yankton, South Dakota, the face 
aggregate of which is two hundred and ten thousand dollars; 
also, bonds issued on account of the school for deaf mutes, at 
Sioux Falls, South Dakota, the face aggregate of which is fifty- 
one thousand dollars; also, bonds issued on account of the Uni- 
versity at Vermillion, South Dakota, the face aggregate of which 
is seventy-five thousand dollars; also, bonds issued on account 
of the penitentiary at Sioux Falls, South Dakota, the face aggre- 
gate of which is ninety-four thousand three hundred dollars; 
also, bonds issued on account of agricultural college, at 
Brookings, South Dakota, the face aggregate of which is ninety- 
seven thousand five hundred dollars; also bonds issued on ac- 
count of the normal school at Madison, South Dakota, the face 
aggregate of which is forty-nine thousand four hundred dollars ; 
also bonds issued on account of school of mines at Rapid City. 
South Dakota, the face aggregate of which is thirty-three thous- 
and dollars; also, bonds issued on account of the reform school 
at Plankinton, South Dakota, the face aggregate of which is thirty 
thousand dollars; also, bonds issued on account of the normal 
school at Spearfish, South Dakota, the face aggregate of which is 
twenty-five thousand dollars; also, bonds issued on account of 
the soldiers' home at Hot Springs, South Dakota, the face aggre- 
gate of which is forty-five thousand dollars. 

6. The States of North Dakota and South Dakota shall pay 



Art. XIII, § 6. THE CONSTITUTION 89 

one-half each of all liabilities now existing or hereafter and prior 
to the taking effect of this agreement incurred, except those here- 
tofore and hereafter incurred on account of public institutions, 
grounds or buildings, except as otherwise herein specifically pro- 
vided. 

7. The State of South Dakota shall pay to the State of North 
Dakota forty-six thousand five hundred dollars on account of the 
excess of territorial appropriations for the permanent improve- 
ment of territorial institutions which under this agreement will 
go to South Dakota, and in full of the undivided one-half interest 
of North Dakota in the territorial library and in full settlement 
of unbalanced accounts, and of all claims against the Territory, 
of whatever nature, legal or equitable, arising out of the alleged 
erroneous or unlawful taxation of the Northern Pacific Railroad 
lands, and the payment of said amount shall discharge and 
exempt the State of South Dakota from all liability for or on ac- 
count of the several matters hereinbefore referred to; nor shall 
either state be called upon to pay or answer to any portion of 
liability hereafter arising or accruing on account of transactions 
heretofore had. which liability would be a liability of the Terri- 
tory of Dakota had such territory remained in existence, and 
which liability shall grow out of matters connected with any 
public institution, grounds or buildings of the territory situated 
or located within the boundaries of the other state. 

8. A final adjustment of accounts shall be made upon the 
following basis: North Dakota shall be charged with all sums 
paid on account of the public institutions, grounds or buildings 
located within its boundaries on account of the current appro- 
priations since March 8th, 1889: and South Dakota shall be charg- 
ed with all sums paid on account of public institutions , grounds 
or buildings located within its boundaries on the same account 
and during the same time. Each state shall be charged with one- 
half of all other expenses of the territorial government during 
the same time. All moneys paid into the treasury during the 
period from'March 8th, 1889. to the time of taking effect of this 
Agreement by any county, municipality or person within the 
limits of th»- proposed State of North Dakota, shall be credited to 

-fate of North Dakota; and all sums paid into said treasury 
within the same time by any county, municipality or person 
within the limits of the 'proposed State of South Dakota shall be 
credited to the State of South Dakota: except that any and all 

s on gross earnings pair] into said treasury by railroad cor- 
porations since the 8th day of March 1889, based upon earnings 
of years prior to l vv >. under and by virtue of the Act of the Legis- 
late bly of the Territory of Dakota, approved March 7th, 



90 THE CONSTITUTION Art. XIII, § 6. 

1889, and entitled "An act providing for the levy and collection of 
taxes upon property of railroad companies in this territory," be- 
ing Chapter 107 of the Session Laws of 1889 (that is, the part of 
such sum going to the territory) shall be equally divided between 
the States of North Dakota and South Dakota; and all taxes here- 
tofore or hereafter paid into said treasury under and by virtue 
of the Act last mentioned, based on the gross earnings of the year 
1888, shall be distributed as already provided by law. except that 
so much thereof as goes to the Territorial Treasury shall be 
divided as follows: North Dakota shall have so [much] thereof as 
shall be or has been paid by railroads within the limits of the 
proposed State of North Dakota and South Dakota so much there- 
of as shall be or has been paid by railroads within the limits of 
the proposed State of South Dakota. Each state shall be credited 
also with all balances of appropriations made by the Seventeenth 
Legislative Assembly of the Territory of Dakota for the account 
of public institutions, grounds or buildings situated within its 
limits, remaining unexpended on March 8th, 1889. If there be 
any indebtedness except the indebtedness represented by the 
bonds and refunding warrants hereinbefore mentioned, each 
state shall at the time of such final adjustment of accounts, as- 
sume its share of said indebtedness as determined by the amount 
paid on account of the public institutions, grounds or buildings 
of such state in excess of the receipts from counties, municipali- 
ties, railroad corporations or persons within the limits of said 
state as provided in this Article; and if there should be a surplus 
at the time of such final adjustment, each state shall be entitled 
to the amounts received from counties, municipalities, railroad 
corporations or persons within its limits over and above the 
amount charged to it. 

Article 13 was designed to pro- shrubbery planted at the Agr. Col- 

tect North and South Dakota from lege at Brookings held to be for 

claims against the territory which, South Dakota to pay if claim is es- 

by the terms of the division and tablished. Jewell Nursery Co. v. 

settlement, it belonged to the other State, 4 S. D. 213, 56 N. W. 113. 
state to pay. A claim for trees and 

§ 7. And the State of South Dakota hereby obligates itself 
to pay such part of the debts and liabilities of the Territory of 
Dakota as is declared by the foregoing Agreement to be its propor- 
tion thereof, the same as if such proportion had been originally 
created by said State of South Dakota as its own debt or liability. 

§ 8. The Territorial Treasurer is hereby authorized and 
empowered to issue refunding bonds to the amount of $107,500.00. 
bearing interest not to exceed the rate of four per cent, per an- 
num, for the purpose of refunding the following described in- 
debtedness of the Territory of Dakota, to-wit: 



Art. XIII, §. 8. THE CONSTITUTION 91 

¥77*500.00 5 per cent bonds, dated May 1st, 1883, issued for 
the construction of the West Wing of the Insane Hospital at 
Yankton and $30,000.00, 6 per cent bonds dated May 1st, 1883, is- 
sued for permanent improvements [of the] Dakota Penitentiary, 
at Sioux Falls, such refunding bonds, if issued, to run for not more 
than twenty years, and shall be executed by the governor and 
treasurer of the Territory, and shall be attested by the secretary 
under the great seal of the Territory. 

In case such bonds are issued by the Territorial Treasurer as 
hereinbefore set forth, before the first day of October, 1889, then 
upon the admission of South Dakota as a state it shall assume 
and pay said bonds in lieu of the aforesaid Territorial indebted- 
ness. 

§ 9. The construction and maintenance of good roads and 
the supplying of coal to the people of the state from the lands 
belonging to the state are works of necessity and importance 
in which the state may engage but no expenditure of money 
for the same shall be made except by the vote of a two thirds 
majority of the legislature. 

Section 9 was adopted Nov. 1916 that might be incurred for the pui - 

as a new section pursuant to ch. 2 poses of this amendment, where such 

special session '16. indebtedness is to be paid from 

In answering the Governor's in- funds raised by general taxation. In 

quiry as to the rural credits acts of re Opinion of Judges, 3 8 S. D. — , 

If 17 the majority of the judges ex- 162 N. W. — . 

pressed the belief, by way of illustra- New section 10 proposed by ch. 

tion. that the debt limit found in § 2 164 '17 and new sections 10 and 11 

of this Art. would operate as a check proposed by ch. 165 '17 to be voted 

upon the amount of indebtedness on Nov. 1918. 

ARTICLE XIV. 

STATE INSTITUTIONS 

§ 1. The charitable and penal institutions of the State of 
South Dakota shall consist of a penitentiary, insane hospital, a 
school for the deaf and dumb, a school for the blind and a re- 
form school. 

2. The state institutions provided for in the preceding 
section shall be under the control of the State Board of Charities 
and Corrections, under such rules and restrictions as the legisla- 
ture shall provide: such board to consist of not to exceed five 
members, to be appointed by the governor and confirmed by the 
senate, and whose compensation shall be fixed by law. 

i Amendment proposed by ch. 133 hered to and applied to the case of 

13 rejected Nov. 1914). vacancy in the board of charities 

The principles laid down in the and corrections. State ex rel. Lavin 

note under the next section in State v. Bacon, 14 S. D. 284, 85 N. \Y. 

ex rel. Holmes v. Finnerud were ad- 225. 



92 



THE CONSTITUTION 



Art. XIV, § 



The term of office of the members 
of the board of charities and cor- 
rections not being fixed by the con- 
stitution it was subject to legisla- 
tive control even as to those in of- 
fice. State ex rel. Lavin v. Bacon, 
14 S. D. 394, 85 N. W. 605. 

Ch. 86 '03 reducing the board of 
charities and corrections to three 
members but continuing the old 



members as constituting the new 
board ad interim until their terms 
expired by limitation, having been 
consented to by the Governor, who 
might have exercised his constitu- 
tional right of appointing the new 
board, did not violate this section. 
Thomas v. State, 17 S. D. 579, 97 
N. W. 1011. 



§ 3. The State University, the agricultural college, the nor- 
mal schools and all other educational institutions that may be 
sustained either wholly or in part by the State shall be under the 
control of a board of five members appointed by the Governor 
and confirmed by the Senate under such rules and restrictions as 
the legislature shall provide. The legislature may increase the 
number of members to nine. 



(As amended in Nov. 1896 pursu- 
ant to ch. 3 6, '95.) 

An amendment proposed by ch. 
18 8, '09 which was offered as new 
section 6 to this article which pro- 
vided that no additional institutions 
should be 'eista'blished without vote 
of thie people was rejected in Nov. 
1910. 

Under former § 3 the Board of 
Regents of Education was a consti- 
tutional board. State ex rel. Hitch- 
cock v. Hewitt, 3 S. D. 187, 52 N. 
W. 875, 16 L. R A. 413, 44 Am. 
St. Rep. 788. 

Former § 3 construed with Art. 
4 § 8 held to mean that an appoint- 
ment to fill a vacancy in the office 
of Regent of Education continued 
for the unexpired term and that 
such appointment was not subject to 



confirmation by the senate and that 
a subsequent appointment during 
such unexpired term made by a 
subsequent Governor and confirmed 
by the senate was void. State ex 
rel Holmes v. Finnerud, 7 S. D. 237, 
64 N. W. 121. 

Former section 3 was not self 
executing. No provision was made 
for the appointment and confirma- 
tion of the successors of regents of 
education appointed under ch. 6 '90 
nor for filling vacancies. Such of- 
ficers did not hold over after the 
expiration of their terms and there- 
upon vacancies arose which the iGov- 
ernor, under Art. 4 § 8, could fill 
without confirmation by the senate. 
State ex rel Wood v. Sheldon, 8 S. 
D. 525, 67 N. W. 613. 



§ 4. (This section was repealed Nov. 
Chapter 36, Laws of 1895.) 



1896, pursuant to 



Former § 4 fixed the term of of- 
fice of trustee at 5 years subject to 
removal for enumerated causes, held 
that a trustee removed without no- 
tice to him was entitled to be re- 



stored to his office by mandamus. 
State ex rel. Hitchcock v. Hewitt, 3 
S. D. 187, 52 N. W. 875, 16 L. R. 
A. 413, 44 Am. St. Rep. 788. 



§ 5. The legislature shall provide that the science of min- 
ing and metallurgy be taught in at least one institution of learn- 
ing under the patronage of the state. 



Art. XV, §1. THE CONSTITUTION 93 

ARTICLE XV. 

MILITIA 

§ i. The militia of the State of South Dakota shall consist 
of all able bodied male persons residing in the state, between the 
ages of eighteen and forty-five years, except such persons as now 
are, or hereafter may be. exempted by fhe laws of the United 
States or of this state. 

§ 2. The legislature shall provide by law for the enroll- 
ment, uniforming, equipment and discipline of the militia and 
the establishment of volunteer and such other organizations or 
both, as may be deemed necessary for the protection of the state, 
the preservation of order and the efficiency and good of the ser- 
vice. 

Under this section and Art. 4 § i Guards, on the Texas border were 

and T. S. Const. Art. S § 1 it was public services and rendered in part 

clearly contemplated that militiamen for the benefit of this state as one of 

might be called into active service by the states of the Union. State ex 

either state or nation. The services rel. Morris v. Handlin, 3 8 S. D. — , 

rendered by the 4th Reg't, S. D. Nat. 162 N. W. 3 79. 

§ 3. The legislature in providing for the organization of the 
militia shall conform, as nearly as practicable, to the regulations 
for the government of the armies of the United States. 

See note State ex rel. Morris v. 
Handlin under preceding section. 

§ 4. All militia officers shall be commissioned by the gover- 
nor, and may hold their commissions for such period of time as 
the legislature may provide, subject to removal by the governor 
for cause, to be first ascertained by a court-martial pursuant to 
law. 

§ 5. The militia shall in cases except treason, felony or 
breach of the peace, be privileged from arrest during their at- 
tendance at muster and elections and in going to and returning 
from the same. 

§ 6. All military records, banners and relics of the state. 
except when in lawful use, shall be preserved in the office of the 
adjutant general as an enduring memorial of the patriotism and 
valor of South Dakota; and it shall be the duty of the legisla- 
ture to provide by law for the safe keeping of the same. 

§ 7. No person having conscientious scruples against bear- 
ing arms shall be compelled to do military duty in time of peace. 



94 THE CONSTITUTION Art. XVI, § 1. 

ARTICLE XVI. 

IMPEACHMENT AND REMOVAL FROM OFIFICE 

§ 1. The House of Representatives shall have the sole 
power of impeachment. 

The concurrence of a majority of all members elected shall 
be necessary to an impeachment. 

§ 2. All impeachments shall be tried by the senate. When 
sitting for that purpose the Senators shall be upon oath or affir- 
mation to do justice according to law and evidence. No person 
shall be convicted without the concurrence of two-thirds of the 
members elected. When the governor or lieutenant governor is 
on trial the presiding judge of the supreme court shall preside. 

§ 3. The governor and other state and judicial officers, ex- 
cept County Judges Justices of the Peace and Police Magistrates 
shall be liable to impeachment for drunkenness, crimes, corrupt 
conduct, or malfeasance or misdemeanor in office, but judgment 
in such cases shall not extend further than to removal from office 
and disqualification to hold any office of trust or profit under the 
state. The person accused whether convicted or acquitted shall 
nevertheless be liable to indictment, trial, judgment and punish- 
ment according to law. 

A member of the board of trust- A. 413, 44 Am. St. Rep. 788. 
ees of one of the educational in- This section relates to officers 

stitutions is not a "state officer" created and named in the constitu- 

within the meaning of this section. tion and not to officers created by 

State ex rel Hitchcock v. Hewitt, 3 the legislature. State ex rel. Ayres 

S. D. 187, 52 N. W. 875, 16 L. R. v. Kipp, 10 S. D. 495, 74 N. W. 440. 

§ 4. All officers not liable to impeachment shall be subject 
to removal for misconduct or malfeasance or crime or misde- 
meanor in office, or for drunkenness or gross incompetency, in 
such manner as may be provided by law. 

Whether the power of removal is ist. If it was the legislative intent 

essentially judicial or executive in by ch. 124 '87 to vest the power of 

its nature is unimportant since the removal from office in the governor, 

constitution has committed to the then to the extent that it purports 

legislature the whole subject of to authorize removal for any caus- 

removal of all officers not liable to es other than those named in the 

impeachment. State ex rel. Hitch- constitution such law became in- 

cock v. Hewitt, 3 S. D. 187, 52 N. operative when the constitution took 

W. 875, 16 L. R. A. 413, 44 Am. effect. State ex rel. Holmes v. 

St. Rep. 788. Shannon, 7 S. D. 319, 64 N. W. 175. 

By expressly enumerating the This section relates to officers 

causes for which an officer may be created and named in the constitu- 

removed the constitution not only tion and not to officers created by 

limits the causes but limits remov- the legislature. State ex rel. Ayres 

als to cases where such causes ex- v. Kipp, 10 S. D. 495, 74 N. W. 440. 



Art. XVI. § -5. THE CONSTITUTION 95 

§ 5. No officer shall exercise the duties of his office after he 
shall have been impeached and before his acquittal. 

§ 6. On trial of an impeachment against the governor the 
lieutenant governor shall not act as a member of the court. 

§ 7. No person shall be tried on impeachment before he 
shall have been served with a copy thereof at least twenty days 
previous to the day set for trial. 

§ 8. No person shall be liable to impeachment twice for the 
same offense. 

ARTICLE XVIL 

CORPORATIONS 

§ 1. No corporation shall be created or have its charter ex- 
tended, changed or amended by special laws except those for 
charitable, educational, penal or reformatory purposes, which 
are to be and remain under the patronage and control of the 
state: but the legislature shall provide, by general laws for the 
organization of all corporations hereafter to be created. 

A church corporation does not ed in this section. Re Hanson's Es- 
come under the exception mention- tate, 38 S. D. — — -, 159 N. W. 399. 

§ 2. All existing charters, or grants of special or exclusive 
privileges under which a bona fide organization shall not have 
taken place and buisness been commenced in good faith at the 
time this constitution takes effect, shall thereafter have no 
validity. 

§ 3. The legislature shall not remit the forfeiture of the 
charter of any corporation now existing nor alter or amend the 
same nor pass any other general or special law for the benefit of 
such corporation, except upon the condition that such corpora- 
tion shall thereafter hold its charter subject to the provisions of 
this Constitution. 

§ 4. The exercise of the right of eminent domain shall 
never be abridged or so construed as to prevent the legislature 
from taking the property and franchises of incorporated com- 
panies and subjecting them to public use, the same as the pro- 
perty of individuals; and the exercise of the police power of the 
state shall never be abridged or so construed as to permit corpor- 
ations to conduct their business in such manner as to infringe 
the equal rights of individuals or the general well-being of the 
state. 



96 



THE CONSTITUTION 



Art. XVII, § 4. 



The police power of the state to 
subject private property to public 
use was not surrendered when the 
railroad company obtained its right 
of way nor has there since been any 
such surrender even if there could 
be. Town of Emery v. C. M. & St. 
P. Ry. Co., 35 S. D. 583, 153 N. W. 
655. 



The provisions of this section are 
not self-executing and the statutes 
do not authorize the condemnation 
of the property of one railway com- 
pany by another for the purpose of 
building a railway longitudinally 
along the line of the former. S. D. 
Cent. Ry. Co. v. C. M..& St. P. Ry. 
Co., 141 Fed. 578, 73 C. C. A. 176. 



§ 5. In all elections for directors or managers of a corpora- 
tion, each member or shareholder may cast the whole number of 
his votes for one candidate, or distribute them upon two or more 
candidates, as he may prefer. 

§ 6. No foreign corporation shall do any business in this 
state without having one or more known places of business and 
an authorized agent or agents in the same upon whom process 
may be served. 



It not having been provided that 
contracts made in violation of this 
section and of § § 3190, 3192 Comp. 
L. shall be void, the courts should 
not declare them absolutely void. 
Wright v. Lee, 2 S. D. 596, 51 N. 
W. 706; on rehearing, 4 S. D 2 3 7, 
55 N. W. 391. 

This section was not designed to 
prevent legislation imposing addi- 
tional restraints upon foreign corpor- 
ations doing business within this 
state. Reed v. Todd, 25 S. D. 421, 
127 N. W. 527. 



The provisions of §§ 883-5 C. C. 
in so far as they prohibit resort to 
the courts of this state for the en- 
forcement of valid interstate con- 
tracts ane within the police power of 
the state. Sioux Remedy Co. v. Cope, 
28 S. D. 397, 133 N. W. 683. This 
decision was reversed in U. S. Su- 
preme Court upon the ground that 
our statute as so construed violated 
the commerce clause of the federal 
constitution. Sioux Remedy Co. v. 
Cope, 235 U. S. 197, 59 L,. ed. 193, 
35 Sup. Ct. Rep. 57. 



§ 7. No corporation shall engage in any business other than 
that expressly authorized in its charter, nor shall it take or hold 
any real estate except such as may be necessary and proper for 
its legitimate business. 



When a corporation has capacity 
to take title to real estate under 
any circumstances it cannot be the 
subject of inquiry between third 
parties whether the conditions were 
met in a given transaction. In such 
case the state only can question the 
transaction. Gilbert v. Hole, 2 S. 
D. 164, 49 N. W. 1; State ex rel. 

§ 8. No corporation shall issue stocks or bonds except for 
money, labor done, or money or property actually received; and 
all fictitious increase of stock or indebtedness shall be void. The 
stock and indebtedness of corporations shall not be increased ex- 
cept in pursuance of general law, nor without the consent of the 



Gilbert v Union Inv. Co., 7 S. D. 51, 
63 N. W. 232. See dissent in 
Adams & W. Co. v. Deyette, 8 S. D. 
119, 65 N. W. 471, 31 L. R. A. 497, 
59 Am. St. Rep. 751. 

See reference to this section in dis- 
senting opinion in Sherman t. Sher- 
man, 23 S. D. 486, 122 N. W. 439. 



Art. XVII. §- 8. THE CONSTITUTION t 97 

persons holding the larger amount in value of the stock first ob- 
tained, at a meeting to be held after sixty days' notice given in 
pursuance of law. 

A contract for the issuance of ing Co. v. Sanitas Mineral Water 

stock by a corporation in consider- Co., 120 Minn. 268, 139 N. W. 606. 
ation of services to be performed for A contract whereby parties holding 

an individual in aiding him to dis- an option on mining property were 

pose of stock of the corporation and to sell the property to a corporation 

in making assays for him violated at a profit and to receive in pay- 

this section. Rogers v. Gladiator ment money and shares of stock 

G. M. Co.. 21 S. D. 412, 113 N. W. of the corporation held not to vlo- 

86. late above section. Chambers v. Mit- 

The constitutional prohibition of tnacht, 23 S. D. 449, 122 N. W. 434. 

South Dakota against the issuance See § 423 C. C. as amended by § 4, 

of corporate stock except for money ch. 104, '07. 

or property actually received is not Bonds issued to secure an antece- 

sufficient to create an implied con- dent debt are void under this section 

tract that the holder of stock is- there being no new consideration 

sued contrary thereto shall pay for other than an extension of time of 

it contrary to the actual contract of payment of the debt. Lyon v. Bleeg, 

subscription but upon the grounds 240 Fed. 405, — C. C. A. — 
of constructive fraud stockholders The acceptance of promissory notes 

who had paid nothing for their that are worth par for the issuance 

stock were nevertheless held liable of corporate stock is not a violation 

to creditors of the corporation who of this section. Schiller Piano Co. v. 

became such after defendants be- Hyde, 3 8 S. D. — , 16 2 N. W. — . 
tame stockholders. Randall Print- 

§ 9. The legislature shall have the power to alter, revise 
or annul, any charter of any corporation now existing and re- 
vocable at the taking effect of this Constitution, or any that may 
be created, whenever in their opinion it may be injurious to the 
citizens of this state, in such a manner, however, that no injus- 
tice shall be done to the incorporators. No law hereafter enacted 
shall create, renew or extend the charter of more than one cor- 
poration. 

§ 10. No law shall be passed by the legislature granting 
the right to construct and. operate a street railroad within any 
city, town or incorporated village, without requiring the con- 
sent of the local authorities having the control of the street or 
highway proposed to be occupied by such street railroad. 

§ 11. Any association or corporation organized for the 
purpose, or any individual, shall have the right to construct and 
maintain lines of telegraph in this state and to connect the same 
with other lines; and the legislature shall by general law of uni- 
form operation provide reasonable regulations to give full effect 
to this section. No telegraph company shall consolidate with or 
hold a controlling interest in the stock or bonds of any other 
telegraph company owning a competing line, or acquire by pur- 
chase or otherwise, any other competing line of telegraph. 



98 . THE CONSTITUTION Art. XVII, § 11. 

This section did not repeal § 3881 Western Union Tel. Co., 4 S. D. 105, 
Comp. L. making telegraph com- 55 N. W. 759, 30 L. R. A. 612, 46 
panies common carriers. Kirby v. Am. St. Rep. 765. 

§ 12. Every railroad corporation organized or doing busi- 
ness in this state under the laws or authority thereof shall have 
and maintain a public office or place in this state for the trans- 
action of its business, where transfers of its stock shall be made, 
and in which shall be kept for public inspection books in which 
shall be recorded the amount of capital stock subscribed, and by 
whom; the names of the owners of its stock, and the amount 
owned by them respectively; the amount of stock paid in, and by 
whom; the transfers of said stock; the amount of its assets and 
liabilities; and the names and place of residence of its officers. 
The directors of every railroad corporation shall anually make 
a report, under oath, to the auditor of public accounts or some 
officer or officers to be designated by law, of all their acts and 
doings, which report shall include such matters relating to rail- 
roads as may be prescribed by law, arid the legislature shall pass 
laws enforcing by suitable penalties the provisions of this section. 

Failure of a foreign railway cor- company of the right of eminent do- 
poration transacting business in this main, specific penalties being pro- 
state to fully comply with all of the vided by § 552 'C. C. for such fail- 
requirements of this section and of ure. I. C. R. Co. v. E. S. P. Quarry 
sec. 551, C. C. passed pursuant there- Co., 33 S. D. 63, 144 N. W. 724. 
to, held not to deprive the railway 

§ 13. The rolling stock, and all other movable property be- 
longing to any railroad company or corporation in this state 
shall be considered personal property, and shall be liable to exe- 
cution and sale in the same manner as the personal property of 
individuals, and the legislature shall pass no laws exempting 
such property from execution and sale. 

§ 14. No railroad corporation shall consolidate its stock, 
property or franchises with any other railroad corporation own- 
ing a parallel or competing line; and in no case shall any con- 
solidation take place except upon public notice given out, at least 
sixty days to all stockholders, in such manner as may be provided 
by law. Any attempt to evade the provisions of this section, by 
any railroad corporation, by lease or otherwise, shall work a for- 
feiture of its charter. 

§ 15. Railways heretofore constructed or that may here- 
after be constructed, in this state are hereby declared public 
highways, and all railroad and transportation companies are de- 
clared to be common carriers and subject to legislative control; 
and the legislature shall have power to enact laws regulating 
and controlling the rates of charges for the transportation of 



Art. XVII, § 15. THE CONSTITUTION 99 

passengers and freight as such common carriers from one point 
to another in this state. 

§ 16. Any association or corporation organized for the pur- 
pose shall have the right to construct and operate a railroad be- 
tween any points within this state, and to connect at the state 
line with railroads of other states. Every railroad company shall 
have the right with its road to intersect, connect with, or cross 
any other railroad, and shall receive and transport each the 
other's passengers, tonnage and cars, loaded or empty, without 
delay or discrimination. 

The provisions of this section are building a railway longitudinally al- 

not self-executing and the statutes ong the line of the former. S. D. 

do not authorize the condemnation Cent. Ry. Co. v. C. M. & St. P. Ry. 

of the property of one railway com- Co., 141 Fed. 578, 73 C. C. A. 176. 
pany by another for the purpose of 

§ 17. The Legislature shall pass laws to correct abuses and 
prevent discrimination and extortion in the rates of freight and 
passenger tariffs on the different railroads in this state, and en- 
force such laws by adequate penalties, to the extent, if necessary 
for that purpose, of forfeiture of their property and franchises. 

§ 18. Municipal and other corporations and individuals in- 
vested w T ith the privilege of taking private property for public 
use shall make just compensation for property taken, injured or 
destroyed, by the construction or enlargement of their works, 
highways or improvements, which compensation shall be paid or 
secured before such taking, injury or destruction. The Legisla- 
ture is hereby prohibited from depriving any person of an ap- 
peal from any preliminary assessment of damages against any 
such corporation or individuals made by viewers or otherwise; 
and the amount of such damages in all cases of appeal shall, on 
the demand of either party, be determined by a jury as in other 
civil cases. 

This section clearly contemplates See reference to this section in 
that damages in the first instance Hyde v. M. D. & P. R. Co., 24 S. D. 
may be assessed by viewers or 3 8 6, 123 N. W. 849. 
otherwise as the legislature may The property of a railway corn- 
provide, but an appeal must be pro- pany although devoted to a public 
vided for. This section does not ap- use is still private property and is 
apply to quasi corporations such as subject to appropriation and con- 
counties, townships and school dis- demnation for street purposes, 
tricts. Twp. of Dell Rapids v. Irv- Town of Emery v. C. M. & St. P. 
ing, 7 S. D. 310, 64 N. W. 149, 29 Ry. Co., 35 S. D. 583, 153 N. W. 
L. R. A. 861. See Art. 6 § 13. 655. 

This section does not apply to the A condemnation proceeding may 

use of the streets of a city for the be dismissed after verdict and be- 

purposes for which they were dedi- fore judgment. Fairmount v. Veb- 

cated, appropriated or condemned. len Ry. Co. v. Bethke, 37 S. D , 

Kirby v. Citizens Tel. Co., 17 S. D. 159 N. W 56. 
362, 97 N. W. 3, 2 Ann. Cas. 152. 



100 THE CONSTITUTION Art. XVII, § 19. 

§ 19. The term "corporations" as used in this Anticle, shall 
be construed to include all joint stock companies or associations 
having any of the powers or privileges of corporations not pos- 
sessed by individuals or partnerships. 

§ 20. Monopolies and trusts shall never be allowed in this 
State and no incorporated company, co-partnership or association 
of persons in this State shall directly or indirectly combine or 
make any contract with any incorporated company, foreign or 
domestic, through their stockholders or the trustees or assigns 
of such stockholders, or with any co-partnership or association of 
persons, or in any manner whatever to fix the prices, limit the 
production or regulate the transportation of any product or com- 
modity so as to prevent competition in such prices, production or 
transportation or to establish excessive prices therefor. 

The Legislature shall pass laws for the enforcement of this 
section by adequate penalties and in the case of incorporated 
companies, if necessary for that purpose may, as a penalty, de- 
clare a forfeiture of their franchises. 

§ 20 was added as a new section polistic trust in a transaction where- 
in Nov. 189 6 pursuant to amendment by a corporation granted to defend- 
proposied by eh. 37, '95. This siecltion ants the right to deal in and sell its 
applies not only to monopolies ac- patented and copyrighted patterns 
quired by combination but to those and publications and defendants 
obtained through unfair competition, agreed to give proper attention to 
State v. Central Lbr. Co., 24 S. D. said agency and not offer for sale 
136, 123 N. W. 504. Affirmed in any other make of patterns. Sulli- 
Central Lbr. Co. v. State, 22o U. S. van v. Rime. 35 S. D. 75, 150 N. W. 
157, 57 L. ed. 164, 33 S. C. R. 66. 556. 

There was no unlawful or mono- 

ARTICLE XVIII. 

BANKING AND CURRENCY 

§ 1. If a general banking law shall be enacted it shall pro- 
vide for the registry and countersigning by an officer of this state 
of all bills or paper credit designed to circulate as money, and 
require security to the full 'amount thereof, to be deposited with 
the State Treasurer, in the approved securities of the State or of 
the United States, to be rated at ten per centum below their par 
value, and in case of their depreciation the deficiency shall be 
made good by depositing additional securities. 

The only banking power referred the other or incidental powers of 

to in Art. 18 is the power of issu- banking are left to citizens as held 

ing "bills or paper credit designed by them at common law. State v. 

to circulate as money." This is the Scougal, 3 S. D. 55, 51 N. W-. 858, 

only banking power made a fran- 15 L. R. A. 477, 44 Am. St. Rep. 

chise under our constitution. All 756. 



THE CONSTITUTION 101 



§ 2. Every bank, banking company or corporation shall be 
required to cease all banking operations within twenty years 
from the time of its organization, and promptly thereafter close 
its business, but shall have corporate capacity to sue or be sued 
until its business is fully closed, but the Legislature may pro- 
vide by general law for the reorganization -of such banks. 

§ 3. The shareholders or stockholders of any banking cor- 
poration shall be held individually responsible and liable for all 
contracts, debts and engagements of such corporation to the ex- 
tent of the amount of their stock therein, at the par value there- 
of, in addition to the amount invested in such shares or stock; 
and such individual liability shall continue for one year after 
any transferor sale of stock by any stockholder or stockholders. 

The clause in § 864 C. C. "shall tion of the constitution which is 

be equally and ratably and not one self executing. Union Nat. Bk. v. 

for the other"' must be construed so Halley, 19 S. D. 474, 104 N. W. 213. 
as to make it accord with this sec- 

ARTICLE XIX. 

CONGRESSIONAL AND LEGISLATIVE APPORTIONMENT 

§ 1. Until otherwise provided by law. the members of the 
House of Representatives of the United States, apportioned to 
this state, shall be elected by the state at large. 

Ch. 223, '09 dividing the state in- Art. 3, § 1. 
to two Congressional districts was By ch. 16, '11 the state is now 
subjected to the referendum and re- divided into three Congressional dis- 
jected in Nov. 1910. See notes under tricts. 

§ 2. Until otherwise provided by law, the Senatorial and 
Representative districts shall be formed, and the Senators and 
Representatives shall be apportioned as follows: 

DISTRICTS 

Note — The present apportionment omitted from this reprint. The 19 IS 
a< fixed by chapter 17, Laws of 1911, election will be under ch. 292 Laws 
as amended by oh. 17, '13, has been of 1917. 

ARTICLE XX. 

SEAT OF GOVERNMENT 

I. The question of the location of the temporary seat of 
government shall be submitted to a vote of the electors of the 
proposed State of South Dakota in the same manner and at the 
same election at which this Constitution shall be submitted, and 
the place receiving the highest number of votes shall be the tem- 
porary seat of governmenl until a permanent seat of government 
shall be established as hereinafter provided. 



102 THE CONSTITUTION Art. XX, § 1. 

At the election herein provided 12,012; Sioux Falls, 11,888; Mit- 
for the result was as follows: Pierre, chell, 7,793; Chamberlain, 2,421; 
27,256; Huron, 15,647; Watertown, scattering, 42. 

§ 2. The legislature at its first session after the admission 
of this state, shall provide for the submission of the question of 
a place for a permanent seat of government to the qualified 
voters of the state at the next general election thereafter, and 
that place which receives a majority of all the votes cast upon 
that question shall be the permanent seat of government. 

Pursuant to ch. 117, '90 the ques_ 252; scattering, 50. Ch. 98, '03 pro- 

tion of location of permanent seat posed an amendment locating the per- 

of government was submitted, and at manent capital at Mitchell. This was 

the election held in Nov. 1890, Pierre rejected in Nov. 1904 by vote of 41,- 

was selected, the vote being as fol_ 155 for, and 58,617 against, 
lows: Pierre, 41,876; Huron, 34,- 

§ 3. Should no place voted for at said election have a ma- 
jority of all votes cast upon this question, the governor shall is- 
sue his proclamation for an election to be held in the same man- 
ner at the next general election to choose between the two places 
having received the highest number of votes cast at the first 
election on this question. This election shall be conducted in 
the same manner as the first election for the permanent seat of 
government, and the place receiving the majority of all votes 
oast upon this question shall be the permanent seat of govern- 
ment, 

ARTICLE XXI. 

MISCELLANEOUS 

§ 1. Seal and Goat of Arms.] The design of the great seal 
of South Dakota shall be as follows: A circle within which shall 
appear in the left foreground a smelting furnace and other fea- 
tures of mining work. In the left background a range of hills. In 
the right foreground a farmer at his plow. In the right back- 
ground a herd of cattle and a field of corn. Between the two 
parts thus described shall appear a river bearing a steamboat. 
Properly divided between the upper and lower edges of the 
circle shall appear the legend, "Under God the People Rule" 
which shall be the motto of the State of South Dakota. Exterior 
to this circle and within a circumscribed circle shall appear, in 
the upper part, the words, "State of South Dakota," in the lower 
part the words, "Great Seal," and the date in Arabic numerals 
of the year in which the State shall be admitted to the Union. 

Note — For description of State 3 61. The anemone is the state flow- 
Flag see Laws 1909, Chap. 230, p. er, ch. 219, '03. 



Art. XX; 



THE CONSTITUTION 



103 



COMPENSATION OF PUBLIC OFFICERS 



§ 2. The Governor shall receive an annual salary of two 
thousand five hundred dollars; the Judges of the Supreme Court 
shall each receive an annual salary of two thousand five hundred 
dollars; the Judges of the Circuit Court shall each receive an an- 
nual salary of two thousand dollars; Provided, that the Legisla- 
ture may, after the year one thousand eight hundred and ninety, 
increase the annual salary of the Governor and each of the Judges 
of the Supreme Court to three thousand dollars, and the annual 
salary of each of the Circuit Court Judges to two thousand five 
hundred dollars. The Secretary of State, Stafe Treasurer and 
State Auditor shall each receive an annual salary of one thousand 
eight hundred dollars: the Commissioner of School and Pub- 
lic Lands shall receive an annual salary of one thousand eight 
hundred dollars; the Superintendent of Public Instruction shall 
receive an annual salary of one thousand eight hundred dol- 
lars: the Attorney General shall receive an annual salary of one 
thousand dollars; the compensation of the Lieutenant Governor 
shall be double the compensation of the State Senator. ' They 
shall receive no fees or perquisites whatever for the performance 
of any duties connected with their offices. It shall not be com- 
petent for the Legislature to increase the salaries of the officers 
named in this article except as herein provided. 

Three attempts have been made to 
remove the limitation upon the sal- 
ary of the Attorney General by pro- 
posing a new Article 2 9 as per ch. 
0; ch. 97, '07; and oh. 59, '09, 
all of which were rejected. Amend- 
ment proposed by ch. 230 '15 re- 
jected. Amendment proposed by 
ch. 166 '17 to be voted on Nov. 
1918. 

By ch. 110 '01 the salaries of 
the Governor and Judges were made 
to conform to the above proviso. 

Ch. 90 '9 7 created a new office, 
designating the person who should 
perform its duties instead of adding 
such duties to the office of secre- 
tary of state hence he could retain 
the fees in addition to his salarv. 
State v. Roddle, 12 S. D. 433, 81 
N. W. 980. 

The authority in the proviso of 
this section was to increase the sal- 
aries to the precise sums mention- 
ed, not to increase the salaries to 
sums not nxceeding those fixed, 
lipru-e and also in view of art 



34, the proviso in ch. 110 '01 was 
void which excepted any circuit 
from its operation wherein the area 
and population were less than the 
amounts specified. Bennett v. State 
16 S. D. 417, 93 N. W. 643. 

The terms and salaries of the su- 
preme and circuit judges are defi- 
nitely fixed by the constitution. 
Hauser v. Seeley. 18 S. D. 308, 100 
N. W. 4 3 7. 

The legislature is without power to 
increase or diminish any salary fixed 
by the constitution. State ex rel. 
Polley v. Anderson, 31 S. D. 261, 
140 N. W. 736. See same case a'& to 
time of commencement of salaries of 
state officers. 

The sum of $50 per month al- 
lowed by ch. 239 '11 to a judge of 
the supreme court who has changed 
his actual residence to the state 
capital but whose legal residence is 
elsewhere is not a "perquisite" nor 
an increase of salary but is an ex- 
pense allowance which was within 
the legislative power to make, pro- 



104 



THE CONSTITUTION 



Art. XXI, § 2. 



vided the allowance was not greater 
than the expenses it was designed 
to cover. McCoy v. Handlin, 35 S. 



D. 487, 153 N. W. 361, L. R. A. 
1915E 858, Ann. Cas. 1917A, 1046 



§ 3. Oath of Office.] Every person elected or appointed to 
any office in this state, except such inferior offices as may be by 
law exempted, shall, before entering upon the duties thereof, take 
an oath or affirmation to support the Constitution of the United 
States and of this State, and faithfully to discharge the duties of 
his office. 

A disbarred attorney could not elected he could not qualify. Dan- 
"discharge the duties" of the office forth v. Egan, 23 S. D. 43, 119 N. 
of State's Attorney, nance though W. 1021. 

§ 4. Exemptions.] The right of the debtor to enjoy the 
comforts and necessaries of life shall be recognized by whole- 
some laws exempting from forced sale a homestead, the value 
of which shall be limited and defined by law, to all heads of 
families, and a reasonable amount of personal property, the kind 
and value of which to be fixed by general laws. 

Amendment proposed hy ch. 39, '93 

rejected, see notes to Art. 23. 

This section did not (as to exist- 
ing contracts) repeal Comp. L. 5133 
providing that there are no ex- 
emptions, except those made ab- 
solute, as against a debt incurred 
for property obtained under false 
pretenses. Sundback v. Griffith, 7 
S. D. 109, 63 N. W. 544. 

§ 21 ch. 51 '90, which purports 
to exempt without limit all life in- 
surance policies from the payment 
of debts of a deceased person is re- 
pugnant to the constitution. A law 
which, without any limitation as to 
value, specifies a kind of property 
that a debtor, solvent or insolvent, 
may acquire by investing therein or 
diverting thereto his entire estate 
to the exclusion of bona fide credi- 
tors is neither ''wholesome" in 
character nor "reasonable" as to 
amount. Skinner v Holt, 9 S. D. 
427, 69 N. W. 595. 

Under ch. 86 '90 enacted to carry 
out the provisions of this section it 
is apparent that the legislature in- 
tended to exempt homesteads from 
sales to enforce mechanic's liens. 
Pallihee v. Wittmayer, 9 S. D. 479, 
70 N. W. 642. 

The legislature by ch. 86 '9 in- 



tended to bestow upon every owner 
of a homestead absolute immunity 
from a sale thereof in satisfaction of 
debts even though contracted for the 
purchase price. N. W. Loan & 
Banking Co. v. Jonasen, 11 S. D. 
566, 79 N. W. 840. 

Whether a sale is voluntary or 
forced depends not upon the mode 
of its execution but upon the pres- 
ense or absence of the consent of 
the owner. When a mortgage au- 
thorizes foreclosure the mortgagors 
have consented to such sale. Kar- 
cher v. Gans, 13 S. D. 383, 83 N. W. 
431, 79 Am. St. Rep. 893. 

This section is not self-executing. 
Under it and § § 3215, 3216 and 
3 235 Pol. Code one person in the 
actual occupancy of a homestead 
constitutes <a family. Somers v. Som- 
ers, 33 S. D. 551, 146 N. W. 716. 

As the law now stands the political 
code gives the homestead exemption 
to "families" while the code of civil 
procedure gives it to "heads of 
families." Somers v. Somers, 34 
S. D. 594, 149 N. W. 558. 

In an action for the foreclosure 
of a land contract under ch. 138 '13 
the wife of the purchaser was not a 
necessary party even though they 
occupied the premises as a home- 



Art. XXI, § 4, 



THE CONSTITUTION 



105 



stead. There could be no home- 
stead right in the property superior 
to the rights of the other party to 
the contract. The decision in North 
western Loan & Banking Co. v. 
Jonasen. 11 S. D. 566, to the effect 
that the legislature intended to ren- 
der a homestead immune from forc- 
ed sale in satisfaction of a debt 
contracted for the purchase price, 
was overruled. Hickman v. Long, 
34 S. D. 639, 150 N. W. 298. 

A partnership cannot be the head 
of a family. In re Lentz, 97 F. 486; 
In re Novak. 150 F. 602. 

For federal decisions construing 
N. D. homestead exemption law see 



In re Malloy, 179 Fed. 942; 188 
Fed. 788, 110 C. C. A, 494. 

Bankrupt held entitled to claim 
new homestead as exempt, the old 
one having been turned over to 
trustee in bankruptcy. Life insur- 
ance payable to the wife held ex- 
empt to the amount of $5,000. In 
re Carlon, 189 Fed. 815. 

The right to a homestead will not 
be upheld when secured by the 
fraudulent conversion of non-ex- 
empt assets. Amundson v. Folsom. 
219 Fed. 122, 135 C. C. A. 24. 
Petition for writ of certiorari de- 
nied by U. S. Supreme Court, 238 
U. S. 629, 59 L. ed 1497. 



§ 5. Rights of Married Women.] The real and personal 
property of any woman in this state, acquired before marriage, 
and all property to which she may after marriage become in any 
manner rightfully entitled, shall be her separate property, and 
shall not be liable for the debts of her husband. 

§ 6. The drainage of agricultural lands is hereby declared 
to be a public purpose and the Legislature may provide therefor, 
and may provide for the organization of drainage districts for the 
drainage of lands for any public use, and may vest the corporate 
authorities thereof, and the corporate authorities of counties, 
townships and municipalities, with power to construct levees. 
drains and ditches, and to keep in repair all drains, ditches and 
levees heretofore constructed under the laws of this state, by 
special assessments upon the property benefited thereby, ac- 
cording to benefits received. 



Sec. 6 was adopted Nov. 1906 as a 
new section pursuant to c'h. 70, '05. 

The right of appeal to the circuit 
court from decisions; of county com- 
missioners in drainage matters giv- 
en by the drainage laws does not 
conflict with this section. In re 
Yankton-Clay Creek Dr. D., 30 S. 
,137 X. W. 608. 

By this amendment the drainage 

§ 7. The irrigation of agricultural binds is hereby declared 
to be a public purpose and the legislature may provide for the 
organization of irrigation districts for the irrigation of land, and 
may vest the corporate authorities thereof and the corporate 
authorities of counties, townships and municipalities with the 
power to construct, operate and maintain irrigation dams, rr><>v- 
voirs, canals, flumes, ditches and laterals, and to keep in repair 



of agricultural lands is made public 
work and as iby the t;rms of the 
drainage law such work is committed 
to the corporate authorities of coun- 
ties the county is the legal 'entity in 
the performance of the work and 
such work is county work within the 
meaning of § 713 Code Civ. Pro. 
John W. Tuthill Lbr. Co. v. McMack- 
in, 31 S. D. 507, 141 N. W. 382. 



106 THE CONSTITUTION Art. XXI, § 



all irrigation dams, reservoirs, canals, flumes, ditches and laterals 
heretofore constructed, under the laws of the state, by special 
assessments upon the property benefited thereby, according to 
the benefits received. 

Sec. 7 was adopted Nov. 1916 as cli. 136 '13 was rejected Nov. 1914. 
a new section pursuant to ch. 229 New section 8 proposed by ch. 

'15. A similar section proposed by 167 '17 to be voted on Nov. 1918. 

ARTICLE XXII. 

COMPACT WITH THE UNITED STATES 

The following article shall be irrevocable without the con- 
sent of the United States and the people of the State of South Da- 
kota expressed by their Legislative Assembly: 

First, That perfect toleration of religious sentiment shall be 
secured, and that no inhabitant of this state shall ever be molest- 
ed in person or property on account of his or her mode of re- 
ligious worship. 

Second, That we, the people inhabiting the State of South 
Dakota, do agree and declare that we forever disclaim all right 
and title to the unappropriated public lands lying within the 
boundary of South Dakota, and to all lands lying within said 
limits owned or held by any Indian or Indian tribes; and that un- 
til the title thereto shall have been extinguished by the United 
States, the same shall be and remain subject to the disposition of 
the United States; and said Indian lands shall remain under the 
absolute jurisdiction and control of the Congress of the United 
States; that the lands belonging to citizens of the United States 
residing without the said State shall never be taxed at a higher 
rate than the lands belonging to residents of this State; that no 
taxes shall be imposed by the State of South Dakota on lands or 
property therein belonging to or which may hereafter be pur- 
chased by the United States, or reserved for its use. But nothing 
herein shall preclude the State of South Dakota from taxing as 
other lands are taxed any lands, owned or held by any Indian 
who has severed his tribal relation and bras obtained from the 
United States, or from any person a title thereto by patent or 
other grant save and except such lands as have been or may be 
granted to any Indian or Indians under any act of Congress con- 
taining a provision exempting the lands thus granted from tax- 
ation. All such lands which may have been exempted by any 
grant or law of the United States, shall remain exempt to the ex- 
tent, and as prescribed by such act of Congress. 

Third, That the State of South Dakota shall assume and pay 
that portion of the debts and liabilities of the Territory of Da- 
kota as provided in this Constitution. 



Art. XXII 



THE CONSTITUTION 



107 



Fourth. That provision shall be made for the establishment 
and maintenance of systems of public schools, which shall be 
open to all the children of this State, and free from sectarian 
control. 



As to Don-liability of U. S. pro- 
perty to assessment for local im- 
provements see note under Art. XI 
and also Pol. Code § 7. 

As a matter of historical interest 
it is noted that even in territorial 
times a trial for homicide commit- 
ted on an Indian reserve was to be 
tried on the federal side of the ter- 
ritorial court and governed by the 
U. S. stature- and rules of the com- 
mon law. McCall v. U. S. 1 Dak. 
46 N. W. 668. 

In Indian country the relation of 
landlord and tenant could not legal- 
ly exist. Uhlis: v. Garrison, 2 Dak. 
71. 2 X. \V ! 

Deed by an Indian during the re- 
striction against alienation specified 
in an act of Congress was held 
void although the U. S. patent to the 
Indian contained no restriction. 
Taylor v. Brown, 5 Dak. 3 3 5. 40 
N. W. Affirmed in 147 U. S. 

640, 3 7 L. ed. 313, 13 Sup. Ct. Rep. 
549. 

A tax deed upon land was void 
where the taxes were levied at a 
time when the title was in the 
United States Government, the en- 
try having been suspended. Dun- 
can v :ner, 9 S. D 3 75, 69 
N. W. 5 80. 

The state court is without juris- 
diction of an action by a tribal In- 
dian against an Indian agent for 
trespass committed on lands with- 
in the reservation. Peano v. Bren- 
man, 20 S. D. 342, 106 N. W. 409. 

The proceeds from the sale of 
inherited allotted lands deposited in 
accordance with federal regulations 
are not subject to execution issued 
on a judgment against the Indian 
who sold the land. Minder v. First 
Nat. Bk. 2 2 S. D. 14. 114 N. W. 
1094. 

Real property owned by the U. S. 
Government is exempt from special 
assessments for local improvements. 



Whittaker v. City of Deadwood, 23 
S. D. 538, 122 N. W. 590, 139 Am. 
St. Rep. 1076. 

The Great Sioux Indian Reserva- 
tion was dissolved in 1889 and divi- 
ded into smaller reservations and 
certain land outside of said smaller 
reservations was restored to the 
public domain. An offense com- 
mitted by one Indian against an- 
other Indian on such land, al- 
though owned by an Indian allottee, 
was subject to the jurisdiction of 
the state court such land having 
ceased to be "Indian country" by 
its restoration to the public dc« 
main. The fact that thereafter 
some Indian might obtain an allot' 
ment of some portion thereof under 
the federal law permitting an In- 
dian to acquire an allotment on the 
public domain off his reservation 
would not reinvest the United States 
with exclusivo jurisdiction over 
crimes committed by Indians gen- 
erally on such an allotment. Ex 
parte Moore, 2 8 S. D. 3 3 9, 133 N. 
W. 817, 32 Ann. Cas. 648. 

A contract made by an Indian 
for the sale of land held by him un- 
der trust patent with restriction 
against alienation is a nullity. In 
an action by him to quiet title he 
need not. in view of the federal 
statutes decisions and regulations, 
refund the consideration paid under 
the contract. Colombe v. Wilson, 
29 S. D. 49, 135 N. W. 668, 33 
Ann. Cas. 894. 

The state courts have jurisdiction 
of the crime of bigamy committed 
by an Indian, who has abandoned 
tribal relations and taken land in 
severalty though he is still under 
the supervision of the Indian agent, 
though the offense be committed 
with another Indian and though 
committed on an Indian reservation, 
the act of Congress of February 2, 
'03 which conferred jurisdiction of 



108 



THE CONSTITUTION 



Art. XXII, 



certain offenses on the federal 
courts, not having specified bigamy. 
State v. Nimrod, 30 S. D. 239, 138 
N. W. 377. 

Whether while the land was un- 
der the control of the Interior De- 
partment a county court had juris- 
diction to determine the heirs of a de- 
ceased Indian allottee under trust pat- 
ent was not decided inasmuch as the 
circuit court of the state had juris- 
diction over an action to determine 
adverse claims begun after appro- 
val by the Secretary of the Inter- 
ior of a deed from the purported 
heirs. Egan v. McDonald, 36 S. D. 
92, 153 N. W. 915. 

A deed purporting to be from the 
heirs of a deceased Indian allottee 
and approved by the Secretary of the 
Interior conveys good prima facie 
title. Tripp v. Sieler, 3 8 S. D. — , 

161 N. W. 33 7; Oldham v. Nelson. 
38 S. D. — , 161 N. W. 814. 

An Indian allottee may maintain 
actions in the state courts for the 
redress of wrongs against his person 
or property. Blackbody v. Maupin, 
38 S. D. — , 162 N. W. 393. 

A judgment against an Indian is 
not a lien on land thereafter acquir- 
ed from the U. S. by him as heir of 
a deceased allottee under trust pat- 
ent. Carlow v. Jordan, 3 8 S. D. — . 

162 N. W. — . 

The reservation of federal con- 
trol was meant to be as broad as 
the duty which the United States as- 
sumed in regard to these lands, 
which was to secure to the Indians 
the peaceful possession thereof as 
their homes and to protect their 
persons and property thereon. U. 
S. v. Ewing, 47 Fed. 809. 

The U. S. Circuit Court of appeals 
has no jurisdiction to review a judg- 
ment of convicition of a capital 
crime, such jurisdiction being in the 
U. S. Supreme Court. Under the Acts 
of Congress the murder of one Indian 
by another is punishable by death. 
Good Shot v. U. S. 104 P. 257, 43 
C. C. A. 525. 

Congress has not renounced its 
power to regulate the itraffic in in- 
toxicating liquors with Indian and 



mixed blood allottees. Status of 
mixed blood Indians. Farrell v. U. 
S. 110 R 942, 49 €. C. A. 183. 

Land reserved by a treaty or Act 
of Congress's for Indian tribes is not 
a part of the public domain. Patent 
issued by land department witihin its 
juris diction is not open to collateral 
attack. King v. McAndrews, 111 F. 
860, 50 C. C. A. 29. 

Indian allottee under Act of 
Cong. Feby. 8, '87, 24 Stat. 288 held 
to be subject to trial under the 
state laws in a prosecution for rape 
and not subject to trial in the fed- 
eral court under Act of Cong. Jany. 
15 '97, 29 Stat. 487, because that 
act related to offenses committed 
within an Indian reservation and 
not on allotted land. U. S. v. Kiya, 
126 Fed. 879. 

Act of Congress, 28 Stat. 305, as 
amended contemplates the selection 
of specific land for allotment be- 
fore bringing suit thereon in the 
federal court. Reynolds v. U. S. 
174 Fed. 212, 98 C. C. A. 220. 

Under Act of Congress, 32 Stat. 
7 93, a subsequent crime commit- 
ted on a lot within a townsite was 
not within the jurisdiction of the 
federal courts. U. S. v. LaPlant, 
200 Fed. 92. 

As to rights of an Indian to al- 
lotment of lands where she had 
ceased tribal relations see Reynolds 
v. U. S., 205 Fed. 685. 

Lands formerly a part of an In- 
dian reservation and which have not 
been restored to the public domain 
but are held by an Indian allottee 
under trust patent are Indian lands 
over which the federal courts have 
exclusive jurisdiction. This deci- 
sion, on a materially different state 
of facts, arrived at a different re- 
sult from that in Ex parte Moore, 
2 8 S. D. 339 and discharged the ap- 
plicant from custody. Ex parte Van 
Moore, 2 21 Fed. 954 

The word "allotment" is the term 
commonly used to describe land 
held by Indians after allotment and 
before the issuance of the patent 
in fee. Estes v. U. S. 225 Fed. 980, 
141 C. C. A. 102. 



Art XXII 



THE CONSTITUTION 



109 



The citizenship of Indian allottees 
conferred by Act of Congress did 
not operate to withdraw them nor 
their property from the control and 
protection of the U. S. government. 
Not only is the personal property 
issued by the U. S. government to 
Indian allottess, who maintain their 
tribal relations, exempt from taxa- 
tion by the state but also the in- 
crease therefrom and also property 
received in exchange therefor. Such 
property is the property of the U. 
S impressed with a trust for the 
benefit of said Indians and is 
within the exclusive control of the 
government. U. S. v. Pearson, 231 
Fed. 270. 

Definition of "Indian Country" 
see ex parte Crow Dog, 109 U. S. 
556, 27 L. ed. 1030. 3 Sup. Ct. Rep. 
396. 

The words •patent or other grant" 
in subdivision two above refer to the 
patent or other grant by which ab- 
solute ownership is conveyed. Hence 
allotted lands held in trust for 2 5 
years after allotment are not taxable 
before the expiration of such period. 
Nor are permanent improvements on 
such lands taxable. Nor is pergonal 
property furnished by the U. S. gov- 
ernment to allottees taxable. U. S. 
v. Rickert, 188 U. S. 432, 47 L. ed. 
532, 2 3 Sup. Ct. Rep. 4 78, revers- 
ing U. S. v. Rickert, 106 F 1. 

A state statute cannot make a deed 
from an Indian allottee executed 
and delivered prior to the removal 
of the restriction upon alienation the 
basis of passing subsequently acquir- 
ed title when the federal statute pro- 
nounces it utterly void. (Reversing 
Simonson v. Mon'sion, 22 S. D. 238, 
117 N. W. 133). Monson v. Simon- 
son. 231 U. S. 341, 58 L. ed. 260, 
3 4 Sup. Ct. Rep. 71. 

As to the jurisdiction of federal 
courts over crimes committed on 
allotted land during the continu- 
ance of the trust period see U. S. 
v. Pelican. 232 U. S. 442, 58 L. ed. 
676, 34 Sup. Ct. Rep. 396. 

Upon accepting a cession of 
lands in a former Indian reservation 
where there remain a large number 



of Indians in possession of land un- 
der trust patents the Congress has 
the power, to the exclusion of the 
state authority, to prohibit the sales 
of intoxicating liquors upon ceded 
lands although the sales are not to 
Indians, and such power will con- 
tinue as long as the Congress deems 
it necessary to the protection of 
the Indians from the evils of in- 
temperance, viz: as long as the 
presence and status of the Indians 
sustain it as a federal regulation. 
Perrin v. U. S. 232 U. S. 479, 58 L. 
ed. 691, 34 Sup. Ct. Rep. 387. 

Act of Congress, July 4, 1884, 23 
Stat, at L. 96, ch. 180, Comp. Stat. 
1913 § 4612 relative to Indian 
homestead entries did not repeal 
Act, Men. 3. 1875, 18 Stat, at L. 
420. ch. 131, Comp. Stat. 1913 § 
4611. They are not repugnant and 
had different fields of application. 
U. S. v. Hemmer, 241 U. S. 379, 60 
L. ed. 1055, 36 Sup. Ct. Rep. 659. 
Followed in Porter v. Steinmetz, 37 
S. D. , 159 N. W. 39. 

Act of Congress prohibiting the 
sale of intoxicating liquors to an 
Indian, who has taken an allotment, 
during the period of restriction 
against alienation sustained as with- 
in the power of Congress over In- 
dian tribes. U. S. v Nice, 241 U. 
S 591, 60 L. ed. 1192, 36 Sup. Ct. 
Rep. 696. 

Adultery committed by one In- 
dian with another on an Indian res- 
ervation is not punishable under U. 
S. Pen. Code § 316, Comp. Stat. 
1913 § 10, 489. It is the policy of 
Congress to let the relations of the 
Indians among themselves be regu- 
lated by tribal customs and laws to- 
gether with regulations by adminis- 
trative officers U. S. v. Quiver, 
241 U. S. 602, 60 L. ed. 1196, 36 
Sup. Ct. Rep. 699. 

See notes on the introduction of 
intoxicating liquor into Indian 
Country in 131 C. C. A. 171. 

For matters relating to the leas- 
ing of Indian lands see note in 136 
C. C. A. 646. 

For note as to the alienation of 
Indian lands see 139 C. C. A. 572. 



110 



THE CONSTITUTION 



Art. XXIII, § 1 



ARTICLE XXIII. 



AMENDMENTS AND REVISIONS OF THE CONSTITUTION 

§ 1. Any amendment or amendments to this Constitution 
may be proposed in either House of the Legislature, and if the 
same shall be agreed to by a majority of the members elected to 
each of the two houses, such proposed amendment or amend- 
ments shall be entered on their journals, with the yeas and nays 
taken thereon, and it shall be the duty of the Legislature to sub- 
mit such proposed amendment or amendments to the vote of the 
people at the next general election. And if the people shall ap- 
prove and ratify such amendment or amendments by a majority 
of the electors voting thereon, such amendment or amendments 
shall become a part of this Constitution; Provided, that the 
amendment or amendments so proposed shall be published for a 
period of twelve weeks previous to the date of said election, in 
such manner as the Legislature may provide; and Provided, fur- 
ther, That if more than one amendment be submitted they shall 
be submitted in such manner that the people may vote for or 
against such amendments separately. 



Oh. 43, '90, amending § 2, Art. 
13, raising state debt limit. Voted 
on Nov. 1890. Yes, 15,787; no, 50,- 
742. 

Cih, 44, '90, Woman iS'uffrage, § 
1, Art, 7. Voted on Nov. 1890. Yes, 
22,972; no, 45,682. 

Ch. 45, '90, Indian Voters. Voffced 
on Nov. 1890. Yes, 29,053; no, 38,- 
362. 

Ch. 36, '91, amending § 6, Art. 3, 
reducing legislative mileage. Voted 
on Nov. 1892. Yes, 39,364; no, 11,- 
236. 

Ch. 37, '93, amending § 5, Art. 9, 
as to County Supt. Voted on Nov. 
1894. Yes, 11,241; no, 27,705. 

Ch. 3 8, '93, amending § 9, Art. 
7. School Elections. Voted on Nov. 
1894. Yes, 17,010; no, 22,682. 

Ch. 39, '93, amending § 4, Art. 21. 
Homesteads. Voted on Nov. 1894. 
Yes, 10,733; no, 29,31<5. 

Ch. 35, '95, amending § 4, Art. 
13. Limitation of Debt. Voted on 
Nov. 1896. Yes, 28,490; no, 14,- 
789. 

Ch. 3 6, '95, amending § 3, Art. 
14 and repealing § 4, Ant. 14. Voted 
on Nov. 1896. Ye®, 31,061; no, 11,- 
690. 



Oh. 37, '95, amending Art. 17, 
by adding § 20. Voted on Nov. 1896. 
Yes, 36,763; no, 9,136. 

Ch. 38, '95 repealing Art. 24. Pro- 
hibition. Voted on Nov. 1896. Yes, 
31,901; no, 24,910. 

Oh. 3 7, '97, amending § 1, Art. 

7. Woman Suffrage. Voted on 
Nov. 1898. Yes, 19,698: no, 22, 
983. 

Ch. 38, '97, providing for Art. 
27, State Dispensary. Voted on Nov. 
1898. Yes, 22,170; no, 20,557. 

Ch. 39, '97, amending § 1, Art. 
3. Initiative and Referendum. Vot- 
ed on Nov. 1898. Yeis, 23,816; no, 
16,483. 

Oh. 63, '99, providing for Art. 28. 
Investment of School Funds. Voted 
on Nov. 1900. Yes, 49,989; no, 15,- 
653. 

Ch. 64, '99, repealing Art. 27. 
State Dispensary. Voted on Nov. 
1900. Yes, 48,673; no, 33,927. 

Ch. 87, '01, amending § 3, Art. 
9. County Seats. Voted on Nov. 
1902. Yes, 36,436; no, 14,612. 

Oh. 88, '01, amending § 11, Art. 
Voted on Nov. 1902. Yes. 46.472; 

8. Rate of Interest on School Funds. 
no. 9.001. 



Art. XXIII, § 1 



THE CONSTITUTION 



111 



Ch. 89, '01, amending § 4, Art. 
13. Limitation of Debt. Voted on 
Nov. 1902. Yes, 32,810; no, 13,_ 
599. 

Ch. 97, '03, proposing Art. 29. 
Salary of Atty. Gen. Voted on Nov. 
1904. Yes, 32,328; no, 43,974. 

Ch. 98, '03, amending § 1, Art. 
20. Seat of Government at Mitchell. 
Voted on Nov. 1904. Yes, 41,155; 
no. 58,617. 

Oh. 99, "03, amending § 11, Art. 
S. School Funds. Voted on Nov. 

1904. Yes, 38,681; no, 21,424. 
Ch. 68, '05. amending § 7, Art. 

9. County S-upt. Voted on Nov. 
1906. Yes, 35,S06; no, 15,971. 

Ch. 69, "05, amending § 23, Art. 
5. Municipal Courts. Voted on Nov. 
1906. Yes, 29,417; no, 18,755. 

Ch. 70, '05, proposing new § 6, 
Art. 21. Drainage. Voted on Nov. 
1906. Yes, 31,151; no, 18,799. 

Ch. 71, '0.'). amending § 1, Art. 
11. Twine Plant Levy. Voted on 
Nov. 1906. Yes, 33,2S5; no, 19,- 
S95. 

Ch. 96, '07, amending Art. 11. Rev- 
enue and Taxation. Voted on Nov. 
Yes, 34,915; no, 47,732. 

Ch. 97, '07, proposing Art. 29. SaL 
arv of Atty. Gen. Voted on Nov. 

1905. Yes, 43,908; no, 52,437. 
Ch. 18, '09, amending § 9, Art. 

S. Leasing Public Lands. Voted on 
Nov. 1910. Yes, 48,152; no, 44,- 
220. 

Ch. 59, '09, proposing Art. 29. Sal- 
arv of Atty. Gen. Voted on Nov. 
1910. Yes, 35,93-2; no, 52,397. 

Ch. 138, '09, proposing new § 10, 
Art. 7. Woman Suffrage. Voted on 
Nov. 1910. Yes, 35,290; no, 57,- 
709. 

Ch. 139, '09, amending § 4, Art. 
13. Limitation of Debt. Voted on 
Nov. 1910. Yes. 3 2.613; no, 52,243. 

Ch. 187. '09, amending Art. 11. 
Revenu- and Taxation. Voted on 
Nov. 1910. Yes, 29,830; no, 52,943. 

Ch. 188, '09, proposing new § 6, 
Art. 14. State Institutions. Voted 
on Nov. 1910. Yes, 36,128; no, 47, 
625. 

Ch. 2 65, '11, amending § 2, Art. 
11. Taxation. Voted on Nov. 1912. 
Yes, 70,686; no, 31,110. 



Ch. 129, '13, amending § 6, Art. 
3. Four Year Legislative Term. Vot- 
ed on Nov. 1914. Yes, 29,746; no, 
45,051. 

Ch. 130, '13, amending § 5, Art. 
S. School Lands. Voted on Nov. 
1914. Yes, 45,554; no, 35,102. 

Ch. 131, '13, amending § 5, Art. 
9, County Supt. Voted on Nov. 
1914. Yes, 32,092; no, 45,733. 

Ch. 132, '13, amending § 1, Art. 
3. Initiative' and Referendum. Vot- 
ed on Nov. 1914. Yes, 28,226; no, 
43,162. 

Ch. 133, "13, amending § § 2 and 
3, Art. 14. State Institutions. Vot- 
ed on Nov. 1914. Yes, 29,601; no, 
44,107. 

Ch. 134, '13, amending § 1, Art. 

7. Woman Suffrage. Voted on Nov. 
1914. Yes, 39, 605; no, 51,519. 

Ch. 135, '13, amending § 7, Art. 
^. Supreme Court. Voted on Nov. 
1914. Yes, 36,317; no, 36,543. 

Ch. 136, '13, proposing new § 7, 
Art. 21. Irrigation. Voted on Nov. 
1914. Yes, 32, 958; no, 40,457. 

Ch. 13 7, '13, Shall a Constitution- 
al Convention be called? Voted on 
Nov. 1914. Yes, 34,832; no, 51,585. 

Ch. 229 '15 proposing new § 7, 
Art. 21. Irrigation. Voted on 
Nov. 1916. Yes, 58,775; no, 
44,238. 

Ch. 230 '15, amending § 2, Art. 
21. Salaries of Public officers. Vot- 
ed on Nov. 1916. Yes, 39,169; no, 
61,223. 

Ch. 231 '15, proposing new Art. 
24. Prohibition. Voted on Nov. 
1916. Yes, 65,334; no, 53,380. 

Ch. 232, '15, amending § 9 Art. 

8. School Lands. Voted on Nov. 
1916. Yes, 41,379; no, 61,798. 

Ch. 233 '15, amending § 1 Art. 
13. Rural Credits. Voted on Nov. 
1916. Yes, 57,569; no, 41,957. 

Ch. 234 '15, amending § 1 Art. 
7. Woman Suffrage. Voted on 
Nov. 1916. Yes, 53,432; no, 58,350. 

Ch. 235 '15, amending Art. 11. 
Revenue and Finance. Voted on 
Nov. 1916. Yes, 43,793; no, 55,568. 

Ch. 236 '15, amending § 2 Art. 23, 
Constitutional Convention. Voted 
on Nov. 1916. Yes, 35,377; no, 
56,432. 



112 THE CONSTITUTION Art. XXIII, § 1. 

Ch. 2, Special Session, 1916, pro- section as- they are in Art. 4 § 9. 

posing new § 9 Art. 13. Good Control of the state educational in- 

Roads and Development of State stitutions was the purpose to which 

Coal Lands. Voted on Nov. 1916. amendment proposed by ch. 58 '97 

Yes, 75,922; no 33,521. related. The membership of such 

Joint resolution, ch. 3 8 '95 sub- board its powers and the abolition 

mitting an amendment to the people of the local boards were but inci- 

for the repeal of constitution, art. dental to and necessarily connected 

24 properly submitted the question. with the object intended. In order 

Lovett v. Ferguson, 10 S. D. 44, 71 to constitute more than one amend- 

N. W. 765. ment the propositions submitted 

The requirement that the amend- must relate to more than one sub- 

ment shall be entered on the jour- ject and have at least two distinct 

nals was complied with by the en- and separate purposes not depend- 

try by title in the journal. The ent upon or connected with each 

words "at large" in connection with other. State ex rel. Adams v. Her- 

such entry are not contained in this reid, 10 S. D. 109, 72 N. W. 93. 

§ 2. Whenever two-thirds of the members elected to each 
branch of the Legislature shall think it necessary to call a con- 
vention to revise this Constitution they shall recommend to the 
electors to vote at the next election for members of the Legisla- 
ture, for or against a convention; and if a majority of all the elec- 
tors voting at said election shall have voted for a convention, the 
Legislature shall, at their next session, provide by law for calling 
the same. The convention shall consist of as many members as 
the House of Representatives of the Legislature, and shall be 
chosen in the same manner, and shall meet within three months 
after their election for the purpose aforesaid. 

Amendment to this section pro- mended by ch. 13 7, '13 rejected 
posed by ch. 236 '15 rejected. Nov. 1914. See notes under previous 

Constitutional convention recom- section. 

ARTICLE XXIV 

PROHIBITION 

§ 1. No person, firm, club, association or corporation within 
this state, shall, on or after the first day of July. 1917, make. 
brew, distil or manufacture, or aid in making, brewing, distilling 
or manufacturing, for sale, barter, trade, gift or beverage pur- 
poses, any spirituous, vinous, malt, brewed, fermented or other 
intoxicating liquors, or any mixtures or compound which in part 
consists of intoxicating liquors, except as hereinafter provided. 

No person, firm, club, association or corporation within this 
htate, shall, on or after the first day of July, 1917, import or aid 
in importing into this state for sale, barter, trade, or gift, nor 
sell or aid in selling, nor offer for sale, barter, or trade or aid in 
offering for sale, barter or trade, nor give away or furnish or 
aid in giving away or furnishing, nor keep for sale, barter, trade 



Art. XXIV, § 1. THE CONSTITUTION 113 

or gift, or aid in keeping For sale barter, trade or gift, any spirit- 
uous, vinous, malt, brewed, fermented or other intoxicating Liq- 
uor or any mixture or compound which in pari consists of intox- 
icating liquors, except as hereinafter provided, 

Provided, thai nothing in this article contained shall be 
construed I" prohibit the compounding, importation, sale or keep- 

iir sale any spirituous, or vinous, liquors or compounds or 
mixtures which in pari consist o[' spirituous or vinous liquors 
in this s!;de For medicinal, mechanical, sacramental or scientific 
purposes by regularly registered pharmacists, under such regu- 
lations and restrictions as the Legislature may prescribe. 

§ 2. The Legislature shall at its nexl session after the 
adoption of this article prescribe regulations for the enforce- 
ment of the provisions of this article and provide adequate and 
able penalties for the violation thereof. 

Former Art. 2 4 upon the same passed to carry into effect this sec- 
subject was adopted by a separate tion of the constitution. The 
vote of 40.2 3 4 for, and 34,510 charge should have been of selling 
' the time of the adoption intoxicating liquors as a beverage, 
of the constitution. Oct. 1, 1889. It State v. Hafsoos 1 S. D. 382, 47 
was repealed in Nov. 1896 pursuant N. W. 400. 

to amendment submitted by ch. 3 8 This article declares a policy, 

he vote being 31,901 for and single in its one ultimate purpose 

against. The following and object, viz: the prohibition of 

notes relate to the former article. the manufacture, sale and keeping 

Selling intoxicating liquors "ma- for sale of intoxicating liquors. 

liciously and wilfully" was not State v. Becker, 3 S. D. 2 9, 51 N. 

made an offense under the statute W. 1018. 

ARTICLE XXV. 

MINORITY REPRESENTATION 

Note — Article 25 of the Constitution, was submitted to a 
separate vote, at the time of the adoption of the Constitution, 
October 1st, 1889. and was rejected by a vote of 24,161 for, and 
46.200 against. 

ARTICLE XXVI. 

SCHEDULE AND ORDINANCE 

§ 1. That no inconvenience may arise from the change of 
the territorial government to the permanent state government, it 
is hereby declared that all writs, actions, prosecutions, claims 
and rights of individuals, and all bodies corporate, shall continue 
as if no change had taken place in this government; and all pro- 
cess which may be before the organization of the judicial depart- 
ment under this constitution, issued under the authority of the 
Territory of Dakota, within the boundary of this state, shall be as 
valid as if issued in the name of the State of South Dakota. 



114 THE CONSTITUTION Art. XXVI, § 1. 

While there was no continuity of fact.s being the same, applies to a 

existence between the territorial decision by the territorial Supreme 

district court and the state circuit Court upon a subsequent appeal to 

court there was an unbroken con- the Supreme Court of the state. Ply- 

tinuity of an action begun in the mouth Co. Bank v.. Oilman, 3 S. D. 

former and terminated in the latter 170, 52 N. W. 869, 44 Am. St. Rep. 

so that it was proper for the circuit 7 82. 

judge who had been the district The mere fact that the manner of 
judge to proceed to a determina- passing the territorial act of March 
tion of a cause tried before and 7 '85 amending the charter of Cham- 
submitted to him as territorial dis- berlain would not be allowable un- 
trict judge. Smith v. Tosini, 1 der the constitution would not have 
S. D. 632, 48 N. W. 299. the effect to repeal the law. King 

The rule that a decision of the v. McAndrews, 104 Fed. 430, re- 
Supreme Court becomes the law of versed in 111 Fed. 860, 50 C. C. A. 
the case in all subsequent stages, the 2 9. 

§ 2. That all fines, penalties, forfeitures and escheats ac- 
cruing to the Territory of Dakota, within the boundary of the 
State of South Dakota, shall accrue to the use of said state. 

§ 3. That all recognizances, bonds, obligations or other un- 
dertakings, heretofore taken, or which may be taken before the 
organization of the judicial department under this constitution, 
shall remain valid, and shall pass over to, and may be prosecuted 
in the name of the State of South Dakota; and all bonds, obliga- 
tions or undertakings, executed to this territory, within the boun- 
daries of the State of South Dakota, or to any officer in his of- 
ficial capacity, shall pass over to the proper state authority, and 
to their successors in office, for the uses therein respectively ex- 
pressed, and may be sued for and recovered accordingly. 

All criminal prosecutions and penal actions, which have 
arisen, or which may arise before the organization of the judicial 
department under this constitution, and which shall then be 
pending, may be prosecuted to judgment and executed in the 
name of the state. 

§ 4. All officers, civil and military, now holding their of- 
fices and appointments in this territory under the authority of 
the United States, or under the authority of the Territory of Da- 
kota, shall continue to hold and exercise their respective offices 
and appointments until superseded under this constitution; Pro- 
vided, that the provisions of the above sections shall be subject to 
the provisions of the act of congress providing for the admission 
of the State of South Dakota, approved by the president of the 
United States on February 22, 1889. 

This section applies only to such tion of the territorial government 

officers as could continue to hold the respondent was required to turn 

their offices because their offices the seal and other effects of his of- 

continue and as the office of clerk flee to the newly appointed clerk 

of the district court of Lawrence of the circuit court. Driscoll v. 

county did not survive the dissolu- Jones, 1 S. D. 8, 44 N. W. 726. 



Art. XXVI. § 4. THE COXSTITUTION 115 

On Nov. 12, 1S89 the office of duties of it under this section. Col- 
State Veterinary Surgeon became lins v. State, 3 S-. D. 18, 51 N. W. 
vacant except as he was permitted 7 7 6. 
to continue to hold and exercise the 

§ 5. This constitution shall be submitted for adoption or 
rejection to a vote of the electors qualified by the laws of this 
territory to vote at all elections, at the election to be held on 
Tuesday, Oct. 1,1889. 

At the said election the ballots shall be in the following form: 

For the constitution: Yes. No. 

For prohibition: Yes. No. 

For minority representation: Yes. No. 

As a heading to each of said ballots shall be printed on each 
ballot the following instructions to voters: 

All persons desiring to vote for the constitution, or for any 
of the articles submitted to a separate vote, must erase the word 
"No." 

All persons who desire to vote against the constitution, or 
against any article submitted separately, must erase the word 
-Yes." 

Any person may have printed or written on his ballot only 
the words "For the Constitution," or "Against the Constitution," 
and such ballot shall be counted for or against 'the Constitution 
accordingly. The same provision shall apply to articles submit- 
ted separately. 

In addition to the foregoing election for the constitution and 
for the articles submitted by this convention for a separate vote 
thereon, an election shall be held at the same time and places, by 
the said qualified electors, for the following state officers, to be 
voted for on the same ballot as above provided for votes on the 
constitution and separate articles, to-wit: 

A governor, lieutenant governor, secretary of state, auditor, 
treasurer, attorney general, superintendent of public instruc- 
tion, commissioner of school and public lands, judges of the su- 
preme, circuit and county courts, representatives in congress, 
state senators, and representatives in the legislature. 

All the elections above provided for shall be held in the same 
manner and form as provided for the election for the adoption or 
rejection of the constitution. And the names of all the officers 
above specified to be voted for at such election shall be written 
or printed upon the same ballots as the vote for or against the 
constitution. 

The judges of election in counting the ballots voted at such 
election shall count all the affirmative ballots upon the consti- 
tution as votes for the constitution; and they shall count all the 






116 THE CONSTITUTION Art. XXVI, § 5. 

negative ballots voted at said election upon the constitution as 
votes against the constitution; and ballots voted at said election 
upon which neither of said words "Yes" or "No" following the 
words "For the Constitution" are erased, shall not be counted 
upon such' proposition. And they shall count all affirmative 
ballots so voted upon the article on prohibition, separately sub- 
mitted, as votes for such article, and they shall count all negative 
ballots so voted upon such article as votes against such article; 
and ballots upon which neither the words "Yes" or "No" follow- 
ing the words "For Prohibition" are erased, shall not be counted 
upon such proposition; and they shall count all the affirmative 
ballots so voted upon the article on minority representation, sep- 
arately submitted, as votes for such article. And they shall count 
all negative ballots so voted upon such article as votes against 
such article; and ballots upon which neither of said words "Yes" 
or "No" following the words "For Minority Representation" are 
erased, shall not be counted upon such proposition. 

If it shall appear in accordance with the returns hereinafter 
provided for, that a majority of the votes polled at such election, 
for and against the constitution, are for the constituion, then 
this constitution shall be the constitution of the State of South 
Dakota. If it shall appear, according to the returns hereinafter 
provided for. that a majority of all votes cast at said election for 
and against "Prohibition" are for prohibition then said Article 
XXIV shall be and form a part of this constitution, and be in full 
force and effect as such from date of said election, but if a ma- 
jority of said votes shall appear, according to said returns to be 
against prohibition, then Article XXIV shall be null and void and 
shall not be a part of this constitution. And if it appear, accord- 
ing to the returns hereinafter provided for, that a majority of all 
votes cast at said election for and against "Minority Representa- 
tion" are for minority representation, then Article XXV shall be 
and form a part of said constitution, and be in full force and ef- 
fect as such from the date of said election; but if a majority of 
said votes shall appear, according to said returns, to be against 
minority representation, then said Article XXV shall be null and 
void and shall not be a part of this constitution. 

At such election the person voted for, for any one of the 
offices to be filled at such election, who shall receive the highest 
number of votes cast at said election, shall be declared elected 
to said office. 

Prior to ch. 84, '93 there, was no in this section. In re Supreme Court 
law providing for the election of Su- Vacancy, 4 S. D. 532, 57 N. W. 495. 
preme and Circuit Judges except as 



Art. XXVI. § 6. THE CONSTITUTION - 117 

§ 6. At the same time and places of election there shall be 
held by said qualified electors an election for the place of the 
temporary seat of government. 

On each ballot, and on the same ballot on which are the 
matters voted for or against, as hereinbefore provided, shall be 
written or printed the words "For Temporary Seat of Govern- 
ment.'" Here insert the name of the city, town or place, to be 
voted fo 

And upon the canvass and return of the vote, made as 
hereinafter provided for, the name of the city, town or place 
which shall have received the largest number of votes for said 
temporary seat of government, shall be declared by the governor, 
chief justice and secretary of the Territory of Dakota, or by any 
two of them, at the same time that they shall canvass the vote 
for or against the constitution, together with the whole number 
of votes cast for each city, town or place, and the officers above 
named, shall immediately after the result of said election shall 
have been ascertained, issue a proclamation directing the legis- 
lature elected at said election to assemble at said city, town or 
place so selected, on the day fixed by this schedule and ordinance. 

§ 7. The election provided for herein shall be under the pro- 
visions of the constitution herewith submitted, and shall be con- 
ducted in all respects as elections are conducted under the gen- 
eral laws of the Territory of Dakota, except as herein provided. 
No mere technicalities or informalities in the manner or form of 
election, or neglect of any officer to perform his duty with regard 
thereto, shall be deemed to vitiate or avoid the same, it being the 
true in lent and object of this ordinance to ascertain and give ef- 
fect to the true will of 'the people of the State of South Dakota, as 
expressed by their votes at the polls. 

s . Immediately after the election herein provided for, 
the judges of election at each voting place shall make a true and 
complete count of all the votes duly cast at such election, and 
shall certify and return the result of the same, with the names 
of all the candidates and the number of votes cast for each candi- 
date, and the number of votes cast for and against the constitu- 
tion, and the number of votes cast for and against prohibition, 
and the number of voles cast for and against minority represen- 
tation, and the number of votes cast for each city, town or place 
for the "'temporary seat of government." to the county clerk, or 
auditor of the respective counties, together with one of the poll 
lists and election books used in said election. 

§ 9. Within five days after said election the several boards 
of county canvassers provided by law for the canvassing of the 
results of the election, shall make and certify to the secretary of 



118 THE CONSTITUTION Art. XXVI, § 9. 

the territory of Dakota the true and correct return of the total 
number of votes cast for the constituion, and against the consti- 
tution, of the number of votes cast for and against "prohibition," 
and the number of votes cast for and against "minority represen- 
tation," and the number of votes cast for each city, town or place 
as the "temporary seat of government," and of the number of 
votes cast for each person voted for at such election, except coun- 
ty officers and members of the legislature, and shall transmit the 
same to the secretary of the territory of Dakota, by mail, and 
shall file with the county clerk or auditor of each of said counties 
a duplicate and certified copy of said return. 

Said board of county canvassers shall issue certificates of 
election to the persons who shall have received the highest num- 
ber of votes cast for the respective offices of judge of the county 
court, and representatives in the legislature, and for state sena- 
tor or senators. 

§ 10. When two or more counties are connected in one 
senatorial or representative district, it shall be the duty of the 
clerks and auditors of the respective counties to attend at the 
office of the county clerk of the senior county in the date of or- 
ganization within twenty days after the date of election, and they 
shall compare the votes given in the several counties comprising 
such senatorial and representative district and such clerks or 
auditors shall immediately make out a certificate of election to 
the person having the highest number of votes in such district for 
state senator or representative or both; which certificate shall be 
delivered to the person entitled thereto on his application to the 
clerk of the senior county of such district. 

§ 11. The secretary of the territory shall receive all returns 
of election transmitted to him as above provided, and shall pre- 
serve the same, and after they have been canvassed as herein- 
after provided, and after the admission of the state of South 
Dakota into the Union, he shall deliver said returns to the proper 
state officer of said state of South Dakota. 

Within fifteen days after said election the secretary of the 
territory, with the governor and chief justice thereof, or any two 
of them, shall canvass such returns and certify the same to the 
president of the United States, as provided in the enabling act. 

They shall also ascertain the total number of votes cast at 
such election for the constitution and against the constitution; 
the total number of votes cast for and against prohibition; and the 
total number of votes cast for and against minority representa- 
tion; and the total number of votes cast for each city, town or 
place as the "temporary seat of government;" and the total num- 
ber of votes cast for each person voted for, for any office at said 



XXVI. $ II. THE CONSTITUTION 119 

election, excepting county judges and members of the legisla- 
ture, and shall declare the result of said election in conformity 
with such vote, and the governor of the territory shall thereupon 
clamation at once thereof. 

They shall also make and transmit to the state legislature, 
immediately upon its organization, a list of all the state and ju- 
dicial officers who shall thus be ascertained to be duly elected. 

The various county and district canvassing boards shall 
make and transmit to the secretary of the territory the names of 
all persons declared by them to be elected members of the sen- 
air and house of representatives of the state of South Dakota; he 
shall make separate lists of the senators and representatives so 
elected, which list shall constitute the rolls under which the sen- 

md house of representatives shall be organized. 

The governor of the territory shall make and issue certifi- 
cation to the persons who are shown by the canvass 
ived the highest number of votes for governor, lieu- 
tenant governor, secretary of state, auditor, treasurer, attorney- 
general, superintendent of public instruction, commissioner of 
public lands and judges of the supreme and circuit 
court-. Such certificates to be attested by the secretary of the 
territory. 

12. The apportionment made in this constitution shall 
pi) the elections above provided for for members of the 

iture. until otherwise provided by law. 
At the first election held under this ordinance for senators 
and representatives of the legislature, there shall be elected 
forty-five senators and one hundred and twenty-four represen- 
tatives in the state legislature respectively. 

13. The legislature elected under the provisions of this 
ordinance and constitution shall assemble at the temporary seat 
of government on the third Tuesday in October, in the year A. D. 

at 12 o'clock noon, and on the first day of their assemblage 
-nor and other state officers shall take the oath of office 
in the presence of the legislature. The oath of office shall be 
administered to tlio members of the legislature and to the state 
officers by the chief justice of the territory, or by any other of- 
ficer duly authorized by the laws of the territory of Dakota to ad- 
minister oaths. 

§ 14. Immediately after the organization of the legislature 
and taking the oath of office by the state officers, the legisla- 
ture shall then and there proceed to the election of two senators 
of the United States for the State of South Dakota, in the mode 
and manner provided by the laws of Congress for the election of 
United States Senators. And the governor and the secretary of 



120 THE CONSTITUTION Art. XXVI,- § 14. 

the state of South Dakota shall certify the election of the said 
senators and two representatives in Congress, in the manner re- 
quired by law. 

§ 15. Immediately after the election of the United States 
senators as above provided for, said legislature shall adjourn 
to meet at the temporary seat of government on the first Tues- 
day after the first Monday of January, 1890, at 12 o'clock M.; 
Provided, however, that if the State of South Dakota has not been 
admitted by proclamation or otherwise at said date, then said leg- 
islature shall convene within ten days after the date of the ad- 
mission of the state into the Union. 

§ 16. Nothing in this constitution or sdtieduls contained 
shall be construed to authorize the legislature to exercise any 
powers except such as are necessary to its first organization, and 
to elect United States senators, and to adjourn as above provided. 
Nor to authorize an officer of the executive, administrative or 
judiciary departments to exercise any duties of his office until 
the State of South Dakota shall have been regularly admitted 
into the Union, excepting such as may be authorized by the Con- 
gress of the United States. 

§ 17. The Ordinances and Schedule enacted by this Con- 
vention shall be held to be valid for all the purposes thereof. 

§ 18. That we, the people of the State of South Dakota, do 
ordain: 

First: That perfect toleration of religious sentiment shall be 
secured, and that no inhabitant of this State shall ever be molest- 
ed in person or property on account of his or her mode of re- 
ligious worship. 

Second: That we, the people inhabiting the State of South 
Dakota, do agree and declare, that we forever disclaim all right 
and title to the unappropriated public lands lying within the 
boundaries of South Dakota; and to all lands lying within said 
limits owned or held by any Indian or Indian tribes, and that 
until the title thereto shall have been extinguished by the United 
States the same shall be and remain subject to the disposition of 
the United States, and said Indian lands shall remain under the 
absolute jurisdiction and control of the Congress of the United 
States; that the lands belonging to citizens of the United States 
residing without the said State, shall never be taxed at a higher 
rate than the lands belonging to residents of this State. That no 
taxes shall be imposed by the State of South Dakota on lands or 
property therein belonging to or which may hereafter be pur- 
chased by the United States, or reserved for its use. But nothing 
herein shall preclude the State of South Dakota from taxing as 
other lands are taxed any lands owned or held by any Indian who 



Art. XXVI, § 18. THE CONSTITUTION 121 

has severed his tribal relation and has obtained from the United 
States, or from any person a title thereto by patent or other grant 
save and except such lands as have been, or may be granted to 
any Indian or Indians under any act of Congress containing a 
provision exempting the lands thus granted from taxation, all 
such lands which may have been exempted by any grant or law 
of the United States .shall remain exempt to the extent, and as 
prescribed by such act of congress. 

Third: That the State of South Dakota shall assume and pay 
that portion of the debts and liabilities of the Territory of Dakota 
as provided in this Constitution. 

Fourth : That provision shall be made for the establishment 
and maintenance of systems of public schools, which shall be 
open to all the children of this State, and free from sectarian 
control. 

Fifth: That Jurisdiction is ceded to the United States over 
the military reservations of Fort Meade, Fort Randall and Fort 
Sully, heretofore declared by the President of the United States; 
Provided legal process, civil and criminal, of this state shall ex- 
tend over such reservations in all cases of which exclusive juris- 
diction is not vested in the United States, or of crimes not com- 
mitted within the limits of such reservations. 

These ordinances shall be irrevocable without the consent ot 
the United States, and also the people of the said State of South 
Dakota, expressed by their Legislative Assembly. 

A person residing on Ft. Meade '0 3, ch. 3 51 conferring jurisdiction 

military reservation acquired none on federal courts to try certain of- 

of the constitutional qualifications fsnses committed on any Indian re- 

of an elector. He was not an in- servation in this state. Hollister v. 

habitant of the state for election U. S.. 145 F. 773, 76 C. C. A. 337. 

purposes. McMahon v. Polk, 10 S. See U. S. v. Rickert, 188 U. S. 432, 

73 X. W. 77. 47 L. R. A. 47 L. ed. 532, 23 Sup. Ct. Rep. 478, 

830. as to taxing the real and personal 

Chap. 106, '01 held to evidence the property of Indian allottees. See 

assent of tJhe people of South Dako- also Sub. 2, Art. 22 and notes, 
ta to Act of Congre°s, February 2, 

§ 19. The tenure of all officers, whose election is provided 
for in this schedule, on the first day of October, A. D. 1889, shall 
be as follows : 

The governor, lieutenant governor, secretary of state, audi- 
tor, treasurer, attorney general, superintendent of public instruc- 
tion, commissioner of school and public lands, judges of county 
courts, shall hold their respective offices until the first Tuesday, 
after the first Monday, in January, A. D. 1891, at twelve o'clock 
M.. and until their successors are elected and qualified. 

The judges of the supreme courl and circuit courts, shall hold 



122 THE CONSTITUTION Art. XXVI, § 19. 

their offices until the first Tuesday, after the first Monday, in Jan- 
uary, A. D. 1894, at twelve o'clock M., and until their successors 
are elected and qualified; subject to the provisions of Sec. 26 of 
Article V of the constitution. 

The terms of office of the members of the legislature, elected 
at the first election held under the provisions of this constitution, 
shall expire on the first Tuesday, after the first Monday, in Janu- 
ary, one thousand eight hundred and ninety-one (1891.) 

See reference to this -section in Beginning of term of office of state 

State ex rel. Null v. Polley, 3 4 £k D. officers Statei 'ex rel. (Polley v. An- 

565, 138 N. W. 300, 42 L. R. A. (N. derson, 31 S. D. 261, 140 N. W. 

S.) 788. 736. 

§ 20. That the first general election under the provisions of 
this constitution, shall be held on the first Tuesday, after the first 
Monday, in November, 1890, and every two years thereafter. 

To construe the words "next gen- A vacancy in the office of Judge of 

eral election" in Art. 5 § 37 to mean the Supreme Court arose when the 

the same as in this section would Judge elect died after an election 

lead to the result that vacancies in held under ch. 84, '93, tout before 

the offices of justice of the peace his term began and the person ap- 

and police magistrate must be filled pointed to fill the vacancy will hold 

at the biennial election instead of the office during the full six year 

at the annual town meeting and the term. In re Supreme Court Vacan- 

State ex rel. MoGee v. Gardner, 3 cy, 4 S. D. 532, 57 N. W. 495. 
municipal election respectively. 
S. D. 553, 54 N. W. 606. 

§ 21. The following form of ballot is adopted. 

CONSTITUTIONAL TICKET 

Instructions to Voters. 

All persons desiring to vote for the constitution, or for any 
of the articles submitted to a separate vote, may erase the word 
"No." 

All persons who desire to vote against the constitution, or 
any articles separately submitted may erase the word "Yes." 

For the Constitution: Yes, No. 

For Prohibition: Yes. No. 

For Minority Representation: Yes. No. 

For as the temporary seat of government. 

For Governor. 

For Lieutenant Governor. 

For Secretary of State. 



THE CONSTITUTION 123 



For Auditor. 

For Treasurer. 

For Attorney General. 

For Superintendent of Public Instruction 

For Commissioner of School and Public Lands. 

For Judges of the Supreme Court 

First District 

Second District 

Third District 

For Judge of the Circuit Court Circuit 

For Representatives in Congress. 

For State Senator. 

For Representative in the Legislature. 

For County Judge. 

22. Tli is constitution shall be enrolled and after adoption 
and signing by the convention shall be delivered to Hon. A. J. 
Edgerton. the president of the constitutional convention, for safe 
keeping, and by him to be delivered to the secretary of state as 
soon as he assumes the duties of his office, and printed copies 
thereof shall be prefixed to the books containing the laws of the 
state and all future editions thereof. 

The president of this convention shall also supervise the 
making of the copy that must he sent to the president of the 
United States; said copy is to be certified by the president and 
chief clerk of this convention. 

§ 23. "The agreement made by the joint commission of the 
constitutional conventions of North and South Dakota concern- 
ing the records, books and archives of the Territory of Dakota is 
hereby ratified and confirmed, which agreement is in the words 
following: That is to say:" 

The following books, records and archives of the Territory of 
Dakota shall be the property of North Dakota, towit: 

All records, books and archives in the offices of the governor 
and secretary of the territory [except records of articles of in- 



124 THE CONSTITUTION Art. XXVI, § 2 3. 

corporation of domestic corporations, returns of election of dele- 
gates to the constitutional convention of 1889, for South Dakota, 
returns of elections held under the so-called local option law in 
counties within the limits of South Dakota, bonds of notaries 
public appointed for counties within the limits of South Dakota, 
papers relating to the organization of counties situate within the 
limits of South Dakota, all of which records and archives are a 
part of the records and archives of said secretary's office; except- 
ing also census returns from counties situate within the limits 
of South Dakota and papers relating to requisitions issued upon 
the application of officers of counties situate within the limits of 
South Dakota, all which are part of the records and archives of 
said governor's office.) 

And the following records, books and archives shall also be 
the property of the State of North Dakota, towit: 

Vouchers in the office or in the custody of the auditor of 
this territory relating to expenditures on account of public in- 
stitutions, grounds or buildings situate within the limits of North 
Dakota; one warrant register in the office of the treasurer of this 
territory, being a record of warrants issued under and by virtue 
of chapter twenty-four of the laws enacted by the eighteenth 
legislative assembly of Dakota territory; all letters, receipts and 
vouchers in the same office now filed by counties and pertaining 
to counties within the limits of North Dakota; paid and cancelled 
coupons in the same office representing interest on bonds which 
said State of North Dakota is to assume and pay; reports of gross 
earnings of the year 1888 in the same office, made by corporations 
operating lines of railroad situated wholly or mainly within the 
limits of North Dakota; records and papers of the office of the 
public examiner of the second district of the territory; records 
and papers .of the office of the second ditsriot board of agri- 
culture; records and papers in the office of the board of pharmacy 
of the district of North Dakota. 

All records, books and archives of the Territory of Dakota 
which it is not herein agreed shall be the property of North Da- 
kota, shall be the property of South Dakota. 

The following books shall be copied and the copies shall be 
the property of North Dakota ,and the cost of such copies shall 
be borne equally by the said states of North Dakota and South 
Dakota. That is to say: 

Appropriation ledger for the years ending November, 1889 
and 1890 — one volume. 

The current warrant auditor's register — one volume. 

Insurance record for 1889- — -one volume. 

Treasurer's cash book "D". 



Art. XXVI § 23. THE CONSTITUTION 125 



Assessment ledger "B". 

Dakota Territory bond register — one volume. 

Treasurer's current ledger— one volume. 

The originals of the foregoing volumes which are to be cop- 
ied, shall at any time after such copying shall have been com- 
pleted, be delivered on demand to the proper authorities of the 
State of South Dakota. 

All other records, books and archives which it is hereby 
agreed shall be the property of South Dakota shall remain at the 
capital of North Dakota until demanded by the legislature of the 
State of South Dakota, and until the State of North Dakota shall 
have had a reasonable time after such demand is made to provide 
copies or abstracts or such portions thereof as the said State of 
North Dakota may desire to have copies or abstracts of. 

The State of South Dakota may also provide copies or ab- 
stracts of such records, books and archives which is agreed shall 
be the property of North Dakota as said State of South Dakota 
shall desire to have copies or abstracts of. 

The expense of all copies or abstracts of records, books and 
archives which it is herein agreed may be made, shall be borne 
equally by said two states. 

ARTICLE XXVII 

STATE CONTROL OF MANUFACTURE AND SALE OF LIQUOR 

NOTE — Article 27 of the Constitution, providing that the 
manufacture and sale of liquor, should be under exclusive state 
control, was submitted by the legislature by ch. 38, '97 and adopt- 
ed by a vote of the people, at the general election in 1898, by a 
vote of 22,170 for and 20.557 against. The legislature by ch. 64, '99 
submitted an amendment repealing Article 27, and at the general 
election held in 1900 the amendment was adopted by a vote of 

73 for and 33.927 against. 

State v. Zophy, 14 S. D. 119, 84 N. W. 391, 86 Am. St. Rep. 741. 

ARTICLE XXVIII 

§ 1. Tie- several counties of the State shall invest the 
ni-.ueys of the permanent school and endowment funds in bonds 
of school corporation, state, county and municipal bonds or in 
first mr.rfi^iges upon good improved farm lands within their 
limits respectively; under such regulations as the legislature may 
provide, but no farm loan shall exceed one thousand dollars to 
any one person, firm or corporation. 

Note — Article 2 8 was proposed by against. Compare this amendment 

the legislature by ch. 63, '99 as an with the amendment of 1904 to § 

amendment to the Constitution, and 11, Art. 8. (ch. 99, '03.) 
was at the general election held in New Article XXIX proposed by 

November, 1900, adopted by a pop. ch. 168 '17 to be voted on Nov. 

ular vote of 49,989 for, and 15,653 1918. 



PARALLEL REFERENCES 



Article of 
Constitution 
ART. I. 

ART. II. 

ART. III. 



Sec. 

Vol. 

Sec. 
Sec. 

Sec. 
Sec. 
Sec. 
Sec. 
Sec. 
Sieic. 
Sec. 
Sec. 
Sec. 
Sec. 
Sec. 



Sec. 



Where discussed in the 
Constitutional Debates 

1, Vol. 1, p. 146, 431, 541, 567, 585. 

2, p. 385. 

1, Vol. 1, p. 138. 

2, Vol. 1, p. 170, 178, 365. 
Vol. 2, p. 342. 

3, Vol. 1, p. 182. 

4, Vol. 1, p. 209. 

5, Vol. 1, p. 185, 206. 

6, Vol. 1, p. 218. 

7, Vol. 1, p. 615, 625. 

12, Vol. 1, p. 223. 

13, Vol. 1, p. 231. 

20, Vol. 1, p. 233. 

21, Vol. 1, p. 228. 

22, Vol. 1, p. 235. 

23, Vol. 1, p. 229. 

Sub. div. 4, Vol. 1, p. 319. 
Sub. div. 7, Vol. 1, p. 318. 
Sub. div. 9, Vol. 1, p. 124. 
Sub. div. 11, Vol. 1, p. 313, 634. 
28, Vol. 1, p. 241. 



T. IV. 












Sec. 


1, Vol. 1, p. 
Vol. 2, p. 478 


143, 


276. 




Sec. 


10, Vol. 1', p. 


122. 




T. V. 












Sec. 


1, Vol. 1, p. 


164. 






Sec. 


4, Vol. 1, p. 


255. 






Sec. 


5, Vol. 1, p. 


260. 






Sec. 


10, Vol. 1, p. 


264. 






Sec. 


11, Vol. 1, p. 


260, 


267 




Sec. 


13, Vol. 1, p. 


148. 






Sec. 


14, Vol. 1, p. 


266. 






Sec. 


17, Vol. 1, p. 
Vol. 2, p. 193. 


564. 






Sec. 


18, Vol. 1, p. 


269. 






Sec. 


19, Vol. 2, p. 


453. 






Sec. 


24, Vol. 1, p. 


269, 


606 




Sec. 


25, Vol. 1, p. 


270. 






Sec. 


26, Vol. 2, p. 


450. 





PARALLEL REFERENCES 



PARALLEL REFERENCES-Continued 

Article of Where discussed in the 

Constitution Constitutional Debates 



ART. VI. 



Sec. 


32, 


Vol. 


2, 


P- 


278. 


Sec. 


34, 


Vol. 


1. 


P. 


272. 


Sec. 


37. 


Vol. 


1, 


P. 


273. 


Sec. 


38, 


Vol. 


1, 


P- 


273. 



ART. VII. 



Sec. 1, Vol. 1, p. 131. 

Sec. 3, Vol. 1, p. 339. 

Sec. 6, Vol. 1, p. 281. 

Sec. 7, Vol. 1, p. 289. 

Sec. S, Vol. 1, p. 289. 

Sec. 9, Vol. 1, p. 2 90. 

Sec. 12, Vol. 1, p. 291. 

Sec. 13, Vol. 1, p. 1-2 5, 291, 303, 333. 

S'£'c. IS. Vol. 1, p. 12 4. 

Sec. 26, Vol. 1, p. 340. 

Sec. 1, Vol. 1, p. 123. 

Vol. 2, p. 311. 

Sec. 2, Vol. 1, p. 123, 397, 403. 633. 

Sec. 4, Vol. 1, p. 123, 393. 

Vol. 2, p. 470. 

Sec. 9, Vol. 1, p. 419. 



ART. 


VIII. 






















Sec. 


1, 


Vol. 


2, 


P. 


250. 










Sec. 


4, 


Vol. 


i! 


P. 


171. 










Sec. 


6, 


Vol. 


i, 


P. 


503. 










Sec. 


8, 


Vol. 


2, 


P. 


252. 










Sec. 


9, 


Vol. 


1, 


P- 


507. 










Sec. 


11, 


Vol. 


1, 


p. 


499, 


510, 


593, 






Sec. 


13, 


Vol. 


1. 


P- 


515. 










Sec. 


14, 


Vol. 


2, 


P- 


89. 






ART. 


IX. 






















Sec. 


2, 


Vol. 


1, 


P. 


449. 










Sec. 


5. 


Vol. 


1. 


P. 


445, 


607. 










Vol 


• 2, p. 


427 


, 463 


, 470 


, 477 






Sec. 


6, 


Vol. 


1. 


P. 


445. 










Sec. 


7, 


Vol. 


1, 


P. 


453. 






ART. 


X. 






















See. 


1, 


Vol. 


1, 


P- 


157, 


229. 




ART. 


XI. 






















Sec. 


1, 


Vol. 


7, 


P. 


122, 


458. 










Vol 


2, P 


. 495. 












Sec. 


2, 


Vol. 


1, 


P. 


468, 


543. 








Sec. 


3, 


Vol. 


1. 


P. 


463/ 










Sec. 


4, 


Vol. 


1', 


P- 


149. 










Sec. 


5, 


Vol. 


1, 


P- 


470. 










Sec. 


6, 


Vol. 


1, 


P. 


471, 


483, 


491. 






Sec. 


11, 


Vol. 


1, 


P. 


493. 






ART. 


XII. 






















Sec. 


2, 


Vol. 


1, 


P- 


125, 


172. 




ART. 


XIII. 



















Sec. 2, Vol. 1, p. 156. 

Vol. 2, p. 495. 
Sec. 4, Vol. 2, p. 515. 



PARALLEL REFERENCES 



PARALLEL REFERENGES-Concluded 



Article of Where discussed in the 

Constitution Constitutional Debates 



ART. XIV. 
ART. XV. 
ART. XVII. 



Sec. 1, Vol. 1, p. 547. 

Sec. 1, Vol. 1, p. 126, 187. 

Sec. 1, Vol. 1, p. 133, 4'39. 

Sec. 4, Vol. 1, p. 109. 

Sec. 12, Vol. 1, p. 465. 

Sec. 13, Vol. 1, p. 545. 

Sec. 15, Vol. 1, p. 125. 

Sec. 18, Vol. 1>, p. 109. 



ART. 


XVIII. 






















Sec. 


1, 


Vol. 


1, 


P- 


549. 






ART. 


XIX. 






















Sec. 


2, 


Vol. 


1, 


P- 


497. 






ART. 


XX. 






















Sec. 


1, 


Vol. 


1, 


P- 


4 01, 


412, 


437. 


ART. 


XXI. 






















Sec. 


1, 


Vol. 


1, 


P. 


147, 


571. 








Sec. 


2, 


Vol. 


1, 


P. 


520. 










Sec. 


4, 


Vol. 


1, 


P- 


552. 






ART. 


XXIII. 






















Sec. 


1, 


Vol. 


1, 


P- 


371, 


609. 




ART. 


XXIV. 






















Sec. 


— , 


Vol. 


1, 


P- 


87, 


17 4, 


327, 








Vol 


1, P- 


177 


, 368 


381. 




ART. 


XXV. 






















Sec. 


— , 


Vol. 


1, 


P- 


177, 


368, 


381. 


ART. 


XXVI. 



















Sec. 17, Vol. 1, p. 613. 
Vol. 2, p. 297, 395. 



INDEX TO CONSTITUTION 



Art. 

Adjournment, consent of both houses required.... 3 

Adjustment of accounts, basis of 12 

Agricultural lands, drainage of 21 

Agricultural lands, irrigation of 21 

Aid to sectarian schools prohibited 8 

Amendments to constitution 23 

Amendments proposed by legislature 23 

Annual report of railroad corporations 17 

Annual tax levied to pay interest 13 

Appeal from county courts 5 

Appeal from circuit courts 5 

Appointments to fill vacancies 4 

Apportionment, congressional and legislative 19 

Appropriations, how made 12 

Arrest, freedom from 3 

Banking corporation time limited to 20 years 18 

Banking corporations, liability of members 18 

Banking laws shall provide what 18 

Bail, excessive not to be required 6 

Bill of Rights 6 

Hills, several readings of 3 

Bills to be signed by presiding officer 3 

Bills, may originate where 3 

Bills, to embrace but one subject 3 

Bills, duty of the governor in relation thereto 4 

Board of charities, state 14 

Board of regents, state 14 

Boundaries of South Dakota 1 

Bribery 3 

Census, when taken 3 

Charters and special privileges, when invalid.... 17 

Charters subject to provisions of constitution 17 

Charters, may be annulled, altered or revised 17 

Charters, restriction on legislature 17 

Charitable institutions, consist of 14 

Charitable institutions, how controlled 14 

Circuit courts, jurisdiction of 5 

Circuit court, time of holding 5 

Circuit court, special term of 5 

Circuits, number of 5 

Circuits, how changed 5 

Circuit court judges, how chosen, term of 

Circuit court judges, who may be 5 

nt court judges, when chosen 5 

lit court judges, salary of 5 

Circuit court judges, may hold court in other cir- 
cuits than their own 5 

Citizenship 7 



Sec. 


Page 


16 


12 


4 


81 


6 


105 


7 


105 


16 


66 


1 


110 


2 


112 


12 


98 


5 


86 


20 


29 


18 


29 


8 


19 


1-2 


101 


2 


80 


11 


10 


9 


101 


3 


101 


1 


100 


23 


58 


1-27 


3 7-5 8 


17 


12 


19 


12 


20 


12 


21 


12 


9 


2 


2 


91 


3 


92 


2 


2 


2 8 


17 


5 


9 


2 


95 


3 


9 5 


9 


97 


10 


97 


1 


91 


2 


91 


14 


2 7 


27 


3 3 


28 


34 


16 


28 


17 


28 


15 


28 


25 


33 


26 


3 3 


:5 


34 


29 


3 i 


1 


58 



INDEX 



Art. 

Clerk of supreme court 5 

Clerk of circuit court 5 

Coal land, development by state. . 13 

Compensation of judges of supreme court 21 

Compensation, extra for public officers prohibited.. 12 

Compensation -for public officers 21 

Common schools secured 8 

Compact with the United States 22 

Condemnation of private property 6 

Congressional and legislative apportionment 19 

Constitutional convention 23 

Corporations 17 

Corporations how construed 17 

Corporations, special privilege 17 

Corporations, elections 17 

Corporations, restrictions 17 

Corporations, controlled by 17 

Corporations, rights of 17 

Corporation debt, limited 13 

County and township organization 9 

County may establish rural credits system 13 

Counties, how organized 9 

County seat, location of 9 

County seat, change of location 9 

Counties to be subdivided into townships 9 

County officers, how chosen 9 

County officers, who may be 9 

County courts, jurisdiction of 5 

County courts, judge, term of office 5 

Courts, jurisdiction over military reservations 26 

Courts, shall be open 6 

Criminal prosecutions, rights of accused in 6 

Criminal offenses, parties held when 6 

Debts and liabilities, limit of 13 

Declaration of rights 6 

Division of territorial debts and liabilities 13 

Division of powers of government 2 

Donations by state or municipality prohibited 13 

Drainage of agricultural lands 21 

Duties of state officers 4 

Education and school lands 8 

Educational fund, how provided 8 

Educational fund, interest of, how apportioned.... 8 

Educational fund, may be invested 8 

Election and rights of suffrage 7 

Elections, free and equal 6 

Elections, general 7 

Election of legislative officers 3 

Electors, residence of 7 

Electors, sex distinction 7 

Electors, privileged from arrest 7 

Electors at elections held for school purposes 7 

Elector, loss of residence 7 

Eligibility of governor 4 

Eligibility of lieutenant governor 4 

Eligibility of circuit judges 5 



Sec. 


Page 


12 


25 


32 


35 


9 


91 


2 


103 


3 


80 


2 


103 


15 


66 




106 


13 


52 


1-2 


101 


2 


112 


1-20 


95-100 


19 


100 


2 


9 5 


•5 


96 


6-8 


96 


1 


95 


11 


97 


4 


83 


1-7 


66-70 


1 


81 


1 


66 


2 


67 


Q 


68 


4 


69 


5 


69 


7 


70 


20-21 


29-30 


19 


29 


18 


120 


20 


57 


i 


45 


10 


5 


4 


83 


1-27 


37-58 


6 


87 




3 


1 


81 


6 


105 


13 


21 


1-17 


60-6£ 


o 


60 


3 


61 


11 


64 


1-9 


58-60 


19 


5 7 


4 


59 


14 


11 


1 


58 


2 


59 


5 


5 9 


9 


60 


6 


60 


2 


18 


2 


18 


2 5-3 5 


3 3-3 6 



INDEX 



Art. 

supreme court judges 

bility of members of legislature 3 

Eminent domain, right of 17 

Enacting clause 3 

Equal rights, in possession of property 6 

Exemptions 21 

itive department 4 

Ex post facto laws prohibited 6 

lence in criminal cases 6 

s, power to remit 4 

Freedom of speech and publication 6 

Good roads, state aid for 13 

Governor, eligibility of 4 

rnor. duty relative to bills 4 

rnor, may disapprove parts of bills 4 

Governor, official influence prohibited 4 

rnor and lieutenant governor, term of office. . . 4 

Governor and lieutenant governor, election of 4 

Governor, duties of 4 

Highways, state aid for 13 

House of representatives 3 

House to keep journal of proceedings 3 

Impeachment, power of in house of representatives 16 

Impeachment, trial by senate 16 

Impeachment, who liable '. . 16 

Impeachment, accused liable to indictment, trial, etc. 16 

Impeachment, powers withheld 16 

Impeachment, notice necessary 16 

Impeachment, restrictions on 16 

Imprisonment for debt prohibited 6 

Initiative, how proposed 3 

Intoxicating Liquor, manufacture, sale and importa- 
tion prohibited 24 

Irrigation of agricultural lands 21 

'tion districts 21 

Journals, legislature to keep 3 

Judges of supreme court 5 

Judges disqualified for holding certain offices 5 

Judges, prohibited from acting as attorneys 5 

Judicial boundaries of 

Judges of the several courts, residence of 

Judges of the several courts, terms of office 5 

Judges of the several courts may fix term when. . . 5 

Judges of the several courts, when chosen 5 

Judicial power, how distributed 

Judicial circuits, may be increased 5 

Jurisdiction of supreme court 

Jury trial, right of, guaranteed 6 

Justice of the peacf 

», go into effect when 3 

Laws, initiated and referred when :: 

Laws relating to courts, to be general 

Legislative apportionment, when made :; 

Legislature, consists of 3 

Legislature, adjournment of 3 

Legislature, may provide for rural credits system 13 



Sec. 


Page 


10-3 5 


25 


3 


8 


4 


95 


18 


12 


14 


5 4 


4 


104 


1-13 


1 7-2 1 


12 


50 


9 


49 


5 


1 8 


5 


4 3 


9 




2 


IS 


9 


- 


10 


20 


11 


20 


1 


i 7 





18 


4-:. 


18 


9 


91 


o 


8 


13 


11 


1 


9 l 


2 


94 


3 


94 


4 


94 


5-6 


95 


7 


95 


8 


9 5 


15 


54 


1 


3 


1 


112 


7 


105 


~ 


105 


13 


11 


6 


24 


35 


36 


31 


:; .". 


11 




'■> 1 


36 


36 


36 


33 


35 


26 


3 3 


1 


21 


1 7 


28 


2 


2 2 


6 


4 4 


2 2 


31 


2 2 


1 5 


1 


3 


34 


35 


5 


9 


1 


3 


i.; 


12 


l 


81 



INDEX 



Art. 

Legislature, may provide for state aid for roads. ... 13 
Legislature, may provide for development of coal 

lands 13 

Legislature, shall meet when and where 3 

Legislature, sessions biennial 3 

Legislature, election of officers 3 

Legislature, qualification of members 3 

Legislature, rules, etc 3 

Legislature, vacancy, how filled 3 

Legislature, restrictions on members 3 

Legislature, prohibited from enacting 3 

Legislative acts, take effect when 3 

Lieutenant governor, duties of 4 

Location of temporary capital 20 

Location of permanent capital 2 

Loss of school funds, how repaid 8 

Lotteries prohibited 3 

Members of legislature, number of 3 

Members of legislature, freedom from arrest 3 

Members of legislature, term of office 3 

Members of legislature, eligibility of 3 

Members of legislature, oath of office 3 

Members of legisalture disqualified to hold office ... 3 

Military subordinate to civil power 6 

Militia, of whom composed 15 

Militia, to be armed and disciplined. . 15 

Militia, organization of . 15 

Militia, officers to be appointed 15 

Military forces, privileged from arrest 15 

Military duty, who privileged from 15 

Military records, to be kept where 15 

Mining and metallurgy required 14 

Minority representation, submission and rejection of 2 5 

Municipal corporations 10 

Municipal corporations, classification of 10 

Municipal corporation, taxing powers of 11 

Municipal corporations, taxation by 10 

Municipal indebtedness limited 13 

Money, how expended 11 

Money, expended only as appropriated 12 

Money, expenditure of by state for good roads and 

development of coal lands 13 

Money, loans by county or state on rural credits. . . 13 

Name of state 1 

Natural rights 6 

Oath of office, legislative 3 

Oath of office, general 21 

Official influence of governor prohibited 4 

Open sessions of legislature 3 

Offenses, bailable when 6 

Officers of counties, townships and districts 9 

Ordinances and schedule, valid 2 6 

Pardons 4 

Pay of public officers 21 

Pay of members of legislature 3 

Personal interest in measures 3 



Sec. 



Page 



9 


91 


9 


91 


7 


9 


2 


8 


14 


11 


3-4 


8-9 


9 


10 


10 


10 


12 


11 


23-26 


1 5-1 6 


22 


15 


7 


19 


1 


101 


2-3 


102 


13 


65 


2 5 


16 


2 


8 


11 


10 


6 


9 


3-4 


8-9 


8 


10 


12 


11 


16 


54 


1 


93 


2 


93 


3 


93 


4 


93 


5 


93 


7 


93 


6 


93 


5 


92 




113 


1 


70 


1 


70 


10 


78 


2 


71 


4 


83 


9 


78 


1 


79 


9 


91 


1 


SI 


1 


2 


1-27 


3 7-5 8 


8 


10 


3 


104 


11 


20 


15 


11 


8 


49 


6 


69 


17 


120 


5 


18 


2 


103 


6 


9 


28 


17 



INDEX 



Art. 

Petition, right of 6 

Pharmacists, registered, excepted from prohibition 

law 24 

\ olice magistrate, powers of 

Powers of government, division of 2 

mble 

lent of senate. 4 

ding officer, to sign bills 3 

Private property, may be taken 17 

ate property, may be taken how 6 

Privileges not to be granted 6 

Process, in name of state 5 

Prohibition, against intoxicating liquor 24 

Prosecution in name of state 5 

Public accounts and expenditures 12 

Public Indebtedness 13 

Public indebtedness, limitation of 13 

Public officers, compensation of 21 

Public school lands, may be sold S 

Public school lands, may be leased 8 

Public school lands, to be appraised 8 

Public school lands, claims of trespassers not rec- 
ognized 8 

Public school lands for colleges, how disposed of . . . 8 
Public lands, governor may disapprove sale or 

lease of 8 

Public schools established 8 

Public money, unlawful use of for profit prohibited. 11 

Public works, development of coal lands 13 

Public works, drainage 21 

Public works, good roads 13 

Public works, irrigation 21 

Public works, rural credits 13 

Qualification of electors 7 

Qualification of militia 15 

Qualification of governor and lieutenant governor. . 4 

Qualifications of senators 3 

Qualifications of representatives 3 

Qualifications, each house the judge of 3 

Quorum 3 

Railroad corporations, to maintain public offices. ... 17 

Railroad corporations, directors to report 17 

Railroad corporations, rolling stock, private property 17 

Railroad corporations, consolidation of 17 

Railroad corporations, public highways : . 17 

Railroad corporations, privileges of 17 

Redress, right of 6 

Refunding bonds authorized 13 

Religious liberties guaranteed 6 

Removal from office 16 

Referendum, invoked how 3 

Registered pharmacists excepted from prohibition 

law 24 

Reporter for supreme court 5 

Reprieves 4 

Representatives, number of 3 



Sec. 



Page 



43 



1 


113 


23 


31 




3 




2 


7 


19 


19 


12 


IS 


99 


13 


5 2 


18 


55 


38 


37 


1 


112 


38 


37 


1-4 


79-81 


1-9 


81-91 


2 


S2 


2 


103 


4-6 


61-62 


9 


63 


8 


63 


10 


63 


7 


63 


12 


6 5 


1 


60 


11 


79 


9 


91 


6 


105 


9 


91 


7 


105 


1 


81 


1-9 


5 8-60 


1 


93 


2 


18 


3 


8 


3 


8 


9 


10 


9 


10 


12 


98 


12 


98 


13 


98 


14 


98 


15 


98 


16 


99 


20 


57 


8 


90 


3 


42 


4 


94 


1 


3 


1 


112 


12 


25 


5 


18 


2 


8 



A 



INDEX 



Art. 

Representatives, term of 3 

Representatives, qualifications of 3 

Representatives, United States, how chosen 19 

Representative districts 19 

Report on receipts and expenditures 11 

Reports, annual 12 

Residence, not gained when 7 

Right of eminent domain 17 

Rights, bill of 6 

Right to bear arms 6 

Rights of married women 21 

Roads, state aid for 13 

Rules, each house to determine 3 

Rural credits 13 

Sale of school supplies, who may not engage in 8 

Salaries of supreme, circuit and county court judges 5 

Salaries of state officers 21 

Schedule and Ordinance 2 6 

School lands, provisions concerning 8 

School lands, may be sold 8 

School lands, protected from trespass 8 

School lands, may be leased 8 

School lands, appraisement of 8 

School lands, claims of trespassers 8 

School fund, how produced 8 

School fund, interest, etc., how used 8 

School fund, how invested 8 

School and endowment funds invested by counties. . 2S 

Seal and coat of arms 21 

Searches and seizures, unreasonable, prohibited .... 6 

Seat of government 20 

Secretary of state, when chosen 4 

Secretary of state, duties of 4 

Senate, number of members 3 

Senate, president of 4 

Senators, eligibility of 3 

Senators, term of 3 

Sessions of legislature, regular 3 

Sessions of legislature, extraordinary 4 

Sessions of legislature, time limited 3 

Sessions of legislature, shall be open 3 

State of South Dakota, to assume debts 13 

State or North Dakota, to assume debts 13 

Special legislation prohibited 3 

State's attorneys 5 

State, may aid good roads 13 

State, may develop coal lands 13 

State, may establish rural credits 13 

State officers, when chosen * 4 

State officers, terms of office 4 

State officers, duties of 4 

State officers, salaries. 21 

State institutions 14 

State debt limited 13 

State disclaims title to public lands 2 2 

Stock of railroad corporations, consolidation pro- 
hibited 17 



Sec. 


Page 


6 


9 


3 


8 


1 


101 


2 


101 


12 


79 


4 


81 


7 


45 


4 


9 5 


1 


37 


24 


58 


5 


10 5 


9 


91 


9 


10 


1 


81 


17 


66 


30 


34 


2 


103 


1-23 


113-123 


2-17 


60-66 


4-6 


61-62 


14 


66 


9 


63 


4 


61 


10 


63 


2 


60 


3 


61 


11 


64 


1 


125 


1 


102 


11 


50 


1-3 


101-102 


12 


21 


13 


21 


2 


8 


7 


19 


3 


8 


6 


9 


7 


9 


4 


18 


6 


9 


15 


11 


7 


90 


6 


87 


23 


15 


24 


32 


9 


91 


9 


91 


1 


81 


12 


21 


12 


21 


13 


21 


2 


103 


1-5 


91-92 


2 


82 




106 



14 



98 



INDEX 



Art. Sec Page 

Street railways 10 

Suffrage may be extended 7 

Suffrage, not entitled to 7 

.Superintendent of public instruction. „ 4 

Lnst state, how brought 3 

Supreme court judges, when chosen 5 

Supreme court judges, terms of office 5 

Supreme court judges, quorum of 5 

Supreme court judges, eligibility of 5 

Supreme court judges, number may be increased. . . 5 

Supreme court, reporter and clerk of 5 

Supreme court, jurisdiction of 

Supreme court, presiding judge 5 

Supreme court, t rms of 5 

Supreme court, consists of 5 

Supreme court, districts 5 

Supreme court districts, number may be increased. . 5 
Supreme court, governor may require opinion of 

Judges 

Suspension of law, exercised how 6 

Taxation, legislature to provide limitation on 11 

toney, bonds, etc 11 

Taxation, to be uniform 6 

ion, exemptions from 11 

d corporations, suspension of prohibited 11 

:on. exemptions void 11 

Tax. how levied 11 

Taxes to be uniform on real and personal property. . 11 

- of circuit and county courts 5 

Telegraph and telephone lines 10 

Terms of supreme court 

Toleration of religious worship 2G 

Township organization . . 9 

portation rates, legislature may correct 17 

st the state 6 

son or felony 6 

Treasurer, eligibility of 4 

Trial right of 6 

Trust and monopolies prohibited 17 

Vacancies in the legislature, how filled 3 

Vacancies in office, how filled 4 

Vacancies in judicial office, how filled 5 

Veto power 4 

- . shall be by ballot 7 

Vote in legislature, how cast on election 3 

Women may vote, when 7 

3 of necessity, good roads and coal lands 13 

Writ of "habeas corpus", privilege of 6 

Yeas and nays recorded 3 



o 


t 2 


2 


59 


8 


60 


13 


21 


27 


17 


26 


33 


8 


25 


i 


24 


10 


25 





24 


12 


2 5 


■> 


2 2-2 3 


9 


2 5 


4 


24 


5 


2 4 


11 


25 


6 


2 4 


13 


o . p 


21 


■ ) 7 


1 


7 2 


4 


." ~> 


17 


55 


-6 


76 


Q 


75 


7 


7 7 


S 


77 


2 


73 


27 


*33 


• > 


72 


4 


2 4 


IS 


12(i 


4 


69 


17 


9 9 


2 5 


5 8 


22 


5 7 


12 


21 


6 


44 


20 


100 


10 


10 


8 


19 


3 7 


36 


9 


20 


3 


5 9 


14 


11 


.9 


60 


9 


91 


8 


49 


13 


11 



■UH 







